The Need for Independent Immigration Courts

By: Julia Filimowicz

Edited By: Michael Crystal and Renan Dennig

In the realm of immigration is the idea of the“American Dream,” or the belief that an individual’s hard work and discipline ensures them upward socioeconomic mobility. However, the continuous failure of the federal government to establish an effective immigration system makes the American Dream largely unattainable. This deprivation takes the form of family separation, mishandling of asylum-seekers, inhumane detention centers, hundreds of miles of a border wall, and an ultimately unjust immigration court system.

The American immigration court system faces a plethora of issues concerning partisan influence, due process, and lack of adequate funding. As a result, the Biden-Harris administration currently faces an excruciating backlog of 1.6 million immigration cases, nearly double the amount compared to when Trump assumed office in 2016. [1] In an attempt to address immigration reform, the Biden administration appointed 17 new immigration judges to the Department of Justice (DOJ), but received backlash for the lack of professional diversity. [2] The Biden administration’s struggle to resolve the aggregation of failed immigration policies of past administrations exacerbates the broken and overwhelmed immigration court system.

Currently, the immigration system is under the authority of the Justice Department, or more specifically, the Executive Office for Immigration Review (EOIR). Recently, prominent legal organizations including the American Bar Association (ABA), American Immigration Lawyers Association (AILA), Federal Bar Association (FBA), and National Association Immigration Judges (NAIJ) lobbied the House Judiciary Subcommittee on Immigration and Citizenship for the establishment of an independent Article I court. [3] An Article I court is one created by Congress under the power of Article I of the Constitution, and would ensure the insulation of partisan influence and protect decisional independence that is vacant in the current immigration system. [4] 

One argument for an Article I court demands that the immigration courts be transferred from the executive to the legislative branch. However, this presents a conflict, ast the Attorney General supervises the Office of Immigration Litigation (OIL) which contends immigration cases on behalf of the government in the circuit court of appeals. [5] The conflict of interest thus arises because immigration judges are overseen by the chief prosecutor in case proceedings instead of an ombudsman-like entity. 

According to an AILA statement, immigration courts lack protection from executive branch interference which jeopardizes the decision making process for its judges. [6] More specifically, intense performance measures on behalf of the executive branch detract from the significance and integrity of judicial authority concerning immigration cases. To put it into perspective, if the Attorney General disagrees with the decision of a judge, the judge is subjected to negative performance measures and their independence is constantly threatened. [7] Given that the Attorney General is likely to bring forward cases in the interests of government and/or partisan agenda, this enables an overstepping of the executive branch onto the judicial branch. 

Another premise of the argument for the establishment of an Article I court is that it would dissolve the arbitrary hiring practices of the current immigration system. The DOJ has a history of investigations concerning allegations of politicized hiring of candidates. [8] As the executive branch is tasked to hire immigration judges, it presents an outlet to hire loyalists over those with the appropriate experience, with no one to critique its selections. This is particularly observant during the Trump administration, where immigration judges were hired due to ideology rather than experience. [9] The administration also revised the standard requirements so that instead of judges having to be active members of the bar in addition to seven years of litigation experience, temporary appointments were made even before background checks were completed. [10] As a result, in 2019, the American Bar Association (ABA) released a report warning that the selection processes might have allowed “underqualified or potentially biased judges to be hired due to the lack of thorough vetting.” [11]

Ideally, immigration judges should serve as experienced, neutral arbiters that ensure due process to everyone that appears in court rather than following the political agenda of their superior. To reach this goal, the FBA stated that the implementation of an Article I court would contain a merit-selection process in the form of Presidentially nominated, Senate-confirmed appellate judges. [12] Similar to the Supreme Court, this methodology of hiring by a body of employers rather than an individual decision-maker ensures a higher likelihood of someone being hired due to experience rather than pure ideology. 

The establishment of an Article I court would resolve major issues with the current immigration system’s selection processes and partisan influences that impact judicial autonomy. Congress must take definitive steps towards reframing the immigration system so that it extracts partisan influence and ensures due process. Although the timeline for the legislation of independent immigration courts remains unclear, the lobbying efforts of the aforementioned legal organizations have been successful as the proposal for an independent Article I court by Rep. Zoe Lofgren, D-Calif. is currently underway to be passed to the Senate. 

NOTES:

1. TRAC Immigration, “The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts,” The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, January 19, 2021, https://trac.syr.edu/immigration/reports/637/.

2. Andrew Cohen, “Biden's New Immigration Judges Are More of the Same,” Brennan Center for Justice, February 9, 2022, https://www.brennancenter.org/our-work/analysis-opinion/bidens-new-immigration-judges-are-more-same.

3. “ABA Urges Congress to Create Separate Immigration Courts,” Americanbar.org (American Bar Association, July 2019), https://www.americanbar.org/news/abanews/aba-news-archives/2019/07/aba-urges-congress-to-create/.

4. Ellen M. Gilmer, “Independent Immigration Courts Envisioned in New Legislation,” Bloomberg Government, February 3, 2022, https://about.bgov.com/news/independent-immigration-courts-envisioned-in-new-legislation/. 

5. “AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts,” American Immigration Lawyers Association, January 4, 2020, https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts.

6. “AILA - AILA Submits Statement for Congressional Hearing on Immigration Courts,” American Immigration Lawyers Association, January 20, 2022, https://www.aila.org/infonet/aila-submits-statement-for-congressional-hearing. 

7. “AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts,” American Immigration Lawyers Association, January 4, 2020, https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts.

8. “Top DEMS Request IG Investigation of Illegal Hiring Allegations at Justice Department,” House Committee on Oversight and Reform, June 6, 2018, https://oversight.house.gov/news/press-releases/top-dems-request-ig-investigation-of-illegal-hiring-allegations-at-justice.

9. “DOJ OIG Releases Management Advisory Memorandum to the Deputy Attorney General and the Director of the Executive Office for Immigration Review Regarding the Immigration Judge and Board of Immigration Appeals Member Hiring Process,” U.S. Department of Justice Office of the Inspector General, March 31, 2022, https://oig.justice.gov/news/doj-oig-releases-management-advisory-memorandum-deputy-attorney-general-and-director-executive.

10. Reade Levinson, Kristina Cooke, and Mica Rosenberg, “Special Report: How Trump Administration Left Indelible Mark on U.S. Immigration Courts,” Reuters (Thomson Reuters, March 8, 2021), https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179.

11. Ibid.

12. “FBA Statement of Record Submitted to the House Committee on the Judiciary Subcommittee on Immigration and Citizenship, ‘Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts,",” Federal Bar Association, February 4, 2020, https://www.fedbar.org/wp-content/uploads/2020/02/FBA-statement-final-0204-2020_Final-2.pdf. 

BIBLIOGRAPHY:

TRAC Immigration. “The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts.” The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, January 19, 2021. https://trac.syr.edu/immigration/reports/637/. 

Cohen, Andrew. “Biden's New Immigration Judges Are More of the Same.” Brennan Center for Justice, February 9, 2022. https://www.brennancenter.org/our-work/analysis-opinion/bidens-new-immigration-judges-are-more-same. 

“ABA Urges Congress to Create Separate Immigration Courts.” Americanbar.org. American Bar Association, July 2019. https://www.americanbar.org/news/abanews/aba-news-archives/2019/07/aba-urges-congress-to-create/. 

Gilmer, Ellen M. “Independent Immigration Courts Envisioned in New Legislation.” Bloomberg Government, February 3, 2022. https://about.bgov.com/news/independent-immigration-courts-envisioned-in-new-legislation/. 

“AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts.” American Immigration Lawyers Association, January 4, 2020. https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts. 

“AILA - AILA Submits Statement for Congressional Hearing on Immigration Courts,” American Immigration Lawyers Association, January 20, 2022, https://www.aila.org/infonet/aila-submits-statement-for-congressional-hearing.

“Top DEMS Request IG Investigation of Illegal Hiring Allegations at Justice Department.” House Committee on Oversight and Reform, June 6, 2018. https://oversight.house.gov/news/press-releases/top-dems-request-ig-investigation-of-illegal-hiring-allegations-at-justice. 

“DOJ OIG Releases Management Advisory Memorandum to the Deputy Attorney General and the Director of the Executive Office for Immigration Review Regarding the Immigration Judge and Board of Immigration Appeals Member Hiring Process.” U.S. Department of Justice Office of the Inspector General, March 31, 2022. https://oig.justice.gov/news/doj-oig-releases-management-advisory-memorandum-deputy-attorney-general-and-director-executive. 

Levinson, Reade, Kristina Cooke, and Mica Rosenberg. “Special Report: How Trump Administration Left Indelible Mark on U.S. Immigration Courts.” Reuters. Thomson Reuters, March 8, 2021. https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179. 

“FBA Statement of Record Submitted to the House Committee on the Judiciary Subcommittee on Immigration and Citizenship, ‘Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts,".” Federal Bar Association, February 4, 2020. https://www.fedbar.org/wp-content/uploads/2020/02/FBA-statement-final-0204-2020_Final-2.pdf.