Tuesday, October 3, 2023

An Article I Immigration Court System: The Obvious Solution

Guest blogger: Veronica Staneck, law student, University of San Francisco

The United States immigration court system is famously flawed. In its current form, adjudicatory responsibilities are given to the Executive Office of Immigration Review (EOIR) within the Department of Justice (DOJ), the federal executive department of the government that enforces federal law. Under this system, the Attorney General selects judges and provides directions to the judges. However, the judges aren’t judges in the typical sense. They are employees of the DOJ that do not benefit from the same protection of Article III judges that safeguard from outside influence. And on a much larger scale, because of the immigration court isn’t its own entity, it doesn’t have the authority to manage its own docket, making the system a political tool for each incoming administration.

            With every administration that has come into office, the cases on the court’s docket have been reprioritized to align with a political message on law enforcement and immigration policy. This reshuffling of the docket has made the court inefficient and resulted in an astronomical backlog. As of January 2023, there are over two million cases pending in immigration court. If the system were insulated from this manipulation by the executive branch, the backlog would likely be nowhere near this. This tremendous interference not only prevents efficient adjudication of cases, but it also deeply undermines public faith in the immigration system as a whole.

            This is not a new problem, and the solution to this problem isn’t new either. The solution is rooted in Article I of the Constitution and Congress’s power to “constitute Tribunals inferior to the supreme Court,” the same authority that created the U.S. Tax Court. If Congress created an immigration court system under Article I, it would separate the court from the influence of the executive branch, making it independent. A judicial appointment in the Article I court would offer immigration judges not only a position higher than that of DOJ employees, one that would attract high quality people with an interest in maintaining an upright system, but would also come with resources and processes that would allow immigration judges to be protected from outside political influence, thus leading to fairer and timelier adjudications. And one of the best parts of this proposed court is the fact that the foundation of an Article I immigration court already exists. There is a trial level, an appellate level, and further review by the U.S. Circuit Courts and the U.S. Supreme Court. All it needs is autonomy.

            In 2022, Representative Zoe Lofgren introduced The Real Courts, Rule of Law Act. The Real Courts bill aims to give the immigration courts this autonomy. The Real Courts bill advocates for the following:

  • Establish an independent immigration court—known as the United States Immigration Court—Consistent with Article I of the United States Constitution and comprised of a trial division, an appellate division, and an administrative division.
  • Ensure that the qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.
  • Ensure that the United States Immigration Court has adequate resources and support to operate efficiently while giving the Court authority to appoint temporary immigration judges and establish temporary court facilities to ensure the expeditious administration of justice.
  • Improve transparency and accountability in Immigration Court proceedings by requiring publication of all court rules and procedures, as well as precedent decisions and pleadings while protecting confidential information.
  • Improve efficiencies by allowing the Immigration Court to establish its own budget without review by the Executive branch and empowering immigration judges to control their own dockets and compel agency action that is unlawfully withheld or unreasonably delayed.
  • Strengthen the integrity of immigration court proceedings by giving immigration judges authority to impose civil money penalties for contempt of court.
  • Ensure dur process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the court.

The Real Courts bill was endorsed by the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association, the National Association of Immigration Judges, and many other important organizations with an interest in seeing this vision come to fruition, and this support suggests that it is a viable and practical vision. But the unfortunate reality is that such a transformation has a tendency to stir heated controversy in Congress, a body with a record of not being receptive to positive immigration reform. To offer a grim preview of the future of this bill, on January 20, 2022, during a hearing before the Subcommittee on Immigration and Citizenship of the Committee on the Judiciary, Republican Representative Tom Tiffany stated that an Article I court was not the topic they should be focusing on, that “this subcommittee should be focused on securing our border and enforcing our immigration laws” and that “Congress should retain its role, our rightful role in making sure that we, along with the Executive Branch oversee the immigration courts.” In fact, isn’t it because of Congress’s “rightful role” to oversee immigration courts that it should be focusing its time on the critical topic Representative Tiffany dismissed?

Without bipartisan support, the Real Courts bill seems to have very little chance of becoming law, and while we cross our fingers that one day, we will have a Congress that recognizes the humanitarian value and practicality of an Article I immigration court, the current system will still be used as a tool to further a political agenda at the cost of millions of people’s livelihoods.



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The backlog is the immediate crisis. Will your proposal deal with it? According to CRS, it would take 300 or more additional IJs to begin to reduce the backlog. Hiring 300 IJs, however, likely would not fully clear the backlog within a 10-year timeframe (i.e., through FY2033). An additional 700 IJs would be needed to fullyclear the backlog by FY2032.

Immigration Judge Hiring and Projected Impact on the Immigration Courts Backlog

Posted by: Nolan Rappaport | Oct 3, 2023 3:29:43 PM

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