Recent policy changes affecting immigration courts are impeding their ability to safeguard the due process rights of non-citizens in a system that has always been hampered by fundamental flaws. With the immigration court backlog now exceeding over a million pending cases, as well as new deportation proceedings being initiated at record high numbers, it’s time for Congress to establish an independent immigration court under Article I of the Constitution.
INHERENT CONFLICTS OF INTEREST
Currently, immigration courts are housed under the Executive Office for Immigration Review (EOIR) of the U.S. Department of Justice (DOJ), the same law enforcement agency that prosecutes immigrants in federal court. This results in the U.S. Attorney General (AG), a Presidential appointee, being both the head prosecutor and head judge when adjudicating immigration cases, creating a glaring conflict of interest. Perhaps even worse, immigration judges (IJs) are considered mere DOJ employees who are hired and fired by the AG. This lack of judicial independence leaves IJs vulnerable to political pressure or risk losing their jobs.
NEWLY IMPOSED QUOTAS AND DEADLINES
For example, the AG recently imposed controversial quotas and deadlines on IJs, tying the number of cases they complete and the time in which they complete them directly to their performance reviews. This creates a direct financial incentive for IJs to force through as many cases as possible as fast as possible. The National Association of Immigration Judges (NAIJ), a union representing the nation’s 440 IJs, has been extremely outspoken in vehemently opposing these quotas and other DOJ efforts to undermine judicial independence. DOJ retaliated against them by petitioning the Federal Labor Relations Authority to decertify the union.
“This Administration’s attempt to silence immigration judges by engaging in frivolous union busting tactics underscores why we need an immigration court system that is separate and independent from the Executive Branch,” said Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (DCA) in a joint statement. As House Judiciary Committee Chairman and Immigration and Citizenship Subcommittee Chair (respectively), they added, “In the coming months, the Judiciary Committee will hold hearings to explore the current state of the U.S. immigration court system and develop a foundation for legislation to create an independent immigration court.”
In the ongoing dispute, the NAIJ recently filed a labor complaint against DOJ, alleging discrimination and unfair labor practices.
FURTHER DOJ EFFORTS TO LIMIT JUDICIAL AUTONOMY
To further restrict judicial autonomy, this administration’s Attorneys General have certified an unprecedented number of Board of Immigration Appeals’ decisions to completely rewrite and overrule well-settled case law. Through their certification power, they have severely limited IJs’ authority to administratively close or continue cases to manage their dockets, and reversed asylum eligibility for victims of domestic abuse and gang violence.
LOBBYING CONGRESS FOR AN INDEPENDENT IMMIGRATION COURT
To fight back, the NAIJ has joined together with the American Bar Association (ABA), the Federal Bar Association (FBA), and the American Immigration Lawyers Association (AILA) to push Congress to pass legislation establishing a United States Immigration Court under its Article I legislative powers, similar to the United States Tax Court, United States Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Armed Forces. Those courts also began as adjudicative bodies within their respective Executive Branch agency but concerns over fairness and impartiality eventually led Congress to reposition those adjudicative responsibilities into independent Article I courts.
Transferring immigration courts away from DOJ to an Article I court will help promote fair and impartial hearings and prevent the overpoliticization of binding precedent. The FBA stated, “As an Article I court begins to operate, and individual cases start to receive fair, prompt, and accurate attention, respect for that court’s authority and decisions should grow over time, lessening delays caused by parties’ dilatory actions as well as the volume of appeals and remands.” Gigi Gardner