An Article I Immigration Court

• Publication year: 2023

An Article I Immigration Court

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Congress, It's Time to Jump-Start This Vehicle to Judicial Independence

Mimi Tsankov ^*

Abstract: Our current immigration court structure, with the court housed within a law enforcement agency, and subject to the whims of politics, underpins an impression that the courts have been transformed into an enforcement agency rather than a fair and neutral arbiter, which is corrosive to public trust. An Article I court would help to fix this broken and ineffective system by implementing a new independent structure that addresses the core elements of concern.

A hallmark of our system of democracy and the rule of law is an independent judiciary. Our immigration court system will never be effective as long as it is housed under the Department of Justice. Congresswoman Zoe Lofgren (D-CA) shared this powerful sentiment before the U.S. House of Representatives, in her role last term as Chair of the Subcommittee on Immigration and Citizenship, while introducing landmark reform legislation. ¹ Dropped in the congressional hopper on February 3, 2022, The Real Courts, Rule of Law Act of 2022 (the "Real Courts Bill") ² is more than just a stopgap to address the ballooning backlog in immigration court caseloads. Chair Lofgren explained that "[a]fter decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair" as she urged Congress to create an immigration court system independent of the executive branch. ³

The Immigration Courts—Running Out of Steam

Chair Lofgren's proposed structural overhaul has been widely viewed as a catalyst to strengthen due process and restore faith in the system by taking politics out of how the immigration courts are managed. ⁴ The Real Courts Bill establishes an independent judiciary formulated under Article I, the legislative branch, of the U.S. Constitution. Doing so would remove it from Article II, the executive branch, where it has resided since 1983, when the Executive Office for Immigration Review (EOIR) was constituted to administer the nation's immigration court system. ⁵ In doing so, the attorney general delegated decision-making authority vested in his role to this separate component within

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the U.S. Department of Justice (DOJ). ⁶ Yet, over time, the court has outgrown its ability to meet its mandate. ⁷ Facing chronic underfunding ⁸ despite its high-profile role in border enforcement, ⁹ EOIR has been the subject of vigorous criticism over the past couple of decades, resulting in congressional oversight hearings, ¹⁰ DOJ Office of Inspector General investigations, ¹¹ and Government Accountability Office (GAO) audits ¹² in an effort to articulate the central concerns facing the system.

The greater legal community has been voicing its growing concerns as well. Organizations ranging from the American Bar Association (ABA) and the Federal Bar Association (FBA) to the National Association of Immigration Judges (NAIJ) and the American Immigration Lawyers Association (AILA) have examined the legal structure of the court in depth. ¹³ Moreover, these organizations have kept up a steady drumbeat of concerns about judicial independence backsliding at the court. ¹⁴ AILA and others pointed to the Trump administration's exploitation of "foundational flaws to manipulate the courts to their breaking points—pressuring judges to render decisions at a break-neck pace at the cost of accuracy, eliminating docketing tools, growing the backlog, and restricting access to relief." ¹⁵

The Court System on a Collision Course

Today, roughly 700 immigration judges (IJs) preside at about 70 immigration courts and adjudication centers located throughout the country. ¹⁶ Administering provisions of the Immigration and Nationality Act, they enforce our nation's system for both removing noncitizens and considering their claims to remain in the country. ¹⁷ Some of these hearings can be quite lengthy, and IJs spend the majority of their time adjudicating applications for relief from removal, including asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, adjustment of status, and certain waivers. ¹⁸ They review credible fear and reasonable fear determinations made by the Department of Homeland Security (DHS) as well, and conduct bond redetermination proceedings for respondents in removal proceedings. ¹⁹ With this vast array of case-types, averaging 71,450 new case filings per month, ²⁰ and with only a comparative "handful" of judges presiding to address the influx, the backlog of cases has continued to grow and currently stands at 2.4 million. ²¹

With the pressure to complete this heavy and mounting workload, each administration's response has varied with a range of measures, and, quite often, manipulation of docketing priorities. During both the Trump and Biden administrations, the effects of shifting priorities have been intense. Thousands of cases that were once ready for resolution were suddenly in need of further preparation, largely due to shifts in executive branch political viewpoints and the resulting changes in precedent case law that affects case outcomes. ²² These

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dramatic adjustments in docketing priorities have, at times, sidelined efficiency and due process interests, as the judges and the parties navigate sharp and sudden changes to the rules of the road. ²³

The Trump administration emphasized "judging" the judges according to strict—even unrealistic—performance metrics. ²⁴ Both the Trump and Biden administrations have prioritized the use of specialized dockets, funneling cases by type before docket-designated judges in efforts to improve efficiency. ²⁵ But, for these judges with existing heavy caseloads, those matters already in the pipeline are off-ramped awaiting their turn. With years of data to analyze what is working and what isn't, it seems that an overemphasis on the speed of judicial throughput has collided with the ever-shifting priorities, resulting in reduced efficiencies. On the contrary, critics argue that we are experiencing erosion of due process amid a growing backlog. ²⁶ Speed over quality undervalues judicial preparation, prioritizes docket shuffling based on political priorities of the moment, and compromises constitutional due process. ²⁷

Even John Oliver Thinks the System Isn't Fair

The public's perception is that the current immigration court system is not always fair or effective—which are the fundamental expectations about a court, generally. ²⁸ Media about the failures of the immigration court system is relentless. ²⁹ Even late night television host John Oliver devoted an episode of his weekly news satire program, Last Week Tonight with John Oliver, to excoriate the immigration court system and its troubles. ³⁰ At its core, when there is an overemphasis on completing cases, affording procedural due process in accordance with the Fifth Amendment can impede management's desire for speed in adjudication. ³¹ This pressure to complete cases notwithstanding the need to ensure that due process standards are ensured has drawn ever greater scrutiny of the system. ³² What makes that pressure so pernicious is that although the judges have the authority to exercise decisional independence, which has been delegated to them by the attorney general, they do not enjoy structural independence. ³³ It is this tension between, on the one hand, being an "employee" of the Department of Justice, with very limited docket control, and subject to discipline for failing to meet performance metrics, while, on the other hand, serving as a judge with decisional independence, that strains the way in which judges are able to manage their dockets and which has, over time, sown public distrust in the system. ³⁴

Are the Courts in Need of a Tune-Up or a Chop Shop?

The pressure to make a change has been building. In 2008, Hon. Dana Leigh Marks, then president of the National Association of Immigration

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Judges, published an article in Bender's Immigration Bulletin calling on Congress to establish an independent Article I immigration court. ³⁵ AILA followed suit, later that year advancing draft Article I legislation to the Obama administration transition team. ³⁶

By 2010, the American Bar Association (ABA) had released a comprehensive national study (the "2010 ABA Report") analyzing how structural dependence frustrated perceptions of fairness. ³⁷ The 2010 ABA Report called for improvements in professionalism and greater accountability in order to counteract the independence concerns. ³⁸ It found that inadequate resources, from courthouse staff to judicial law clerks, impeded docket management efforts. ³⁹ The study concluded that training and professional development opportunities were lacking, leading to a host of deficiencies around sensitivity in the courtroom and awareness about some human rights conditions and emerging developments in immigration law. ⁴⁰ The judicial hiring process had become politicized, with repeated violations of the basic federal laws designed to avoid such perceptions. ⁴¹ It also acknowledged that there were too few judges for the workload and insufficient time to adequately consider cases. ⁴² That the judicial model employed involved multiple trials a day, and relied so heavily on the use of oral decisions, it was no surprise that judges were, at times, intemperate, due in part to "burnout." ⁴³

The 2010 ABA Report did not, however, specify that an Article I court was the only solution. It recommended three possible paths forward, one of which was for Congress, using its Article I legislative powers, to create an independent immigration court system, comprised of a trial-level division and an appellate-level division to replace the existing structure. ⁴⁴ The other two options proposed were to create an independent executive...