The Immigration Court Conundrum
The current neglected state of the immigration court system is nothing new. While we are barraged daily by reports of the Trump administration and the doings of his US Attorney General, we must look beyond the current reporting to understand why the immigration court is in a state of legal and moral collapse. You will find this is a very old problem, which begs the question of whether the immigration court (Article I court) could become more fair and efficient as an independent Article I entity as a branch of the judiciary court (Article III court) rather under the control of the Department of Justice and the US Attorney General.
In 1952, the
Immigration and Nationality Act (INA) was enacted by Congress. The INA tasked the
attorney general of the US, who is statutorily responsible, to craft a functioning immigration court system. Immigration court is under the management of the US Attorney General and its judges are employees of the Department of Justice. (1)
Immigration judges are appointed by the US Attorney General. Further, the judges authority does not derive from Article III of the US Constitution, which established the judicial branch. Instead, immigration judges are administrative law judges (ALJ's) who must perform their duties as set forth by the US Attorney General.
According to the Southern Poverty Law Center (SPLC), no one in this unitary system holds the judges accountable. The normal check in an effective judicial system, the appeals process in immigration court fails to ensure uniformity and accountability. (2) Additionally, there has long existed a possibility for politicized influence by the Attorney General, among other issues.
According to the Southern Poverty Law Center (SPLC), no one in this unitary system holds the judges accountable. The normal check in an effective judicial system, the appeals process in immigration court fails to ensure uniformity and accountability. (2) Additionally, there has long existed a possibility for politicized influence by the Attorney General, among other issues.
The Executive Office for Immigration Review (EIOR) was created by the Attorney General in 1983, after Congressional hearings that produced claims of "gross abuse of authority," obstruction and "crippling" problems. (3) Its development was a reaction to widespread critiques that the pre-existing system was under-resourced, overburdened, violative of procedural rights, and embedded in an enforcement-driven context. However, despite the broad agreement on the need for systemic reform, Congress did not pass legislation to improve the immigration court structure.
Recently, the American Bar Association on Immigration, predicted the collapse of the immigration court system, because no reform initiatives have addressed the underlying structural problem caused by the attorney general's control. (4) If Congress were to remove the immigration judges from the employment of Justice Department and the unitary control of the Attorney General, it would ensure that ALJ's would be given the judicial independence they need to be fair, impartial arbiters. The change would ensure a fair and even-handed appeals process as well.
Judicial independence is the hallmark of modern adjudication systems that adhere to the rule of law. The removal would enable the immigration court to become part of the judicial branch of government as an independent Article I court, with an independent adjudication system to be created. Further, would include merits-based appointments, tenure guarantees, and a method of internal accountability and a more fair appellate oversight. (5)
Question
Do you agree that Congress should remove the immigration courts from the executive branch and the control of the US Attorney General?
Please explain why.
Sources
1. www.splcenter.org/20190625/attorney-generals-judges-how-us-immigration.courts-became-deportation-tool)
3. www.justice.gov/opa/pr/eior-announces-largest-ever-immigration-judge-investiture
4. www.americanbar.org/news/aba-news-archi...019/03/aba-commission-to-recommend-immigration-reform/
5. www.splcenter.org
I would agree that the immigration courts should be moved away from the executive branch and more under the judiciary. A judge should have the ability without having undue political pressure to make judgements based on law to make informed decisions. Currently while under the executive branch at the control of the AG office this would be nearly impossible.
ReplyDeletehttps://www.nytimes.com/2018/05/17/us/politics/sessions-immigration-judges.html we see that the US AG office is taking tools away from the system that would allow the judges to make proper decisions. https://cliniclegal.org/resources/doj-requires-immigration-judges-meet-quotas we also see the US AG putting pressure on these judges with quotas. So the judges in order to get proper review have to go through 700 cases in a year. This places pressure on judges instead of following law to focus on time.
I would agree with your assessment that being moved would allow them the freedom of judicial independence.
I also believe one of your points that is brought up that the court is under politized influence is nopt a possibility but is a reality based on the two actions by then AG Jeff sessions.
Ethan, there has been scrutiny of late that reflects political bias into the situation of the immigration courts.
ReplyDeleteWithout making this a political blog, we have seen the finger being pointed at the Trump administration and the politicization of the whole immigration debacle.
From my research, it is clear that the deplorable situation has existed since the inception of the court and the ALG's.
Hopefully, a move away from the AG would be beneficial on many levels. Thanks for your thoughtful response.
Great post, Georgi. Very thorough. Honestly, I'm not exactly sure where I stand on this issue.
ReplyDeleteI can see how there would definitely be bias, depending on whomever the AG is at the time. And I agree that the courts might flow a little better if they were more under Article III than under Article I.
In my opinion, I think the best way that we can have a fair immigration court system is if the courts that immigrants go to are led by a panel of judges from both sides of the aisle. I believe that if the courts continued to use singular judges while not under the control of the AG, they could be pressured by the public to make rulings that they don't necessarily agree with, or they could be targeted and harmed for their rulings. I think that the public would react a little more civilly if they knew that the decisions from the immigration courts were coming from a group of judges who had different political leanings and discussed the facts together before making said decisions.
So more of a thought based on your comment...do you think a panel of judges would slow down a process that is already incredibly time consuming? Currently with just one i see it taking at times too long. If left to three it could take even longer if it needed to essentially be a majority.
DeleteI mostly ask as i was thinking about incorporating the time spent in my reply but decided not too. But your post has me again thinking of how could a fair and streamlined process be created.
I agree there needs to be some form of change; however, I do not agree with the multi judge system speeding up the process. If this was a viable fix then the appellate courts would be able to hear a much larger annual case docket. Contrarily, they hear a fraction of the cases trial courts handle with more than double the judges presiding. Great thought but I think the application doesn't work.
DeleteHere's my thought. If the immigration judges were in the judicial branch. Their rulings could establish "immigration" common law. This would allow the immigration law to evolve under the judiciary guidance, which would make the system efficient.
DeleteEthan,
DeleteI think it would slow down the process, yes. That's a question that would need to be addressed.
Cain,
I agree with you that it wouldn't speed up the process. I was thinking more along the lines of ways to keep the rulings as objective as possible. I think more brains at the table would help in doing that.
Lenny,
That's a good point, that immigration could end up becoming common law. I do wonder, however, if the common law would be widely accepted or if it would cause more controversy on the subject.
I fully agree that immigration courts should be removed from the executive branch and placed under the judicial branch. Particularly in light of the recent move from the executive branch that allows the EOIR director ‘have the power to issue appellate decisions in immigration cases that have not been decided within an allotted timeframe. It also creates a new office of policy within EOIR to implement the administration's immigration policies.’ (1)
ReplyDeleteThe President of the National Association of Immigration Judges, Ashley Tabaddor summed up, “By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled”. (2) In this way, though the AG is cleared by the President and the Senate, the director of the EOIR is not, however, they are given ability to adjudicate and implement policy making. This could lead to very political motivations for adjudication in these cases.
This begs me to wonder if those in immigration courts are really having immigration judges who are impartial or if the judges are concerned with the backlash they could receive from EOIR, or AG. As Georgi stated in the last paragraph, in moving the courts to the Judicial branch as Article 1 courts it then creates ‘an independent adjudication system’, and also would allow for an impartial appellate process, unlike the current process. Particularly with this new ruling from the executive branch to further bias the immigration proceedings. (3)
In regards to Dan’s comments, although having a panel of judges would be nice to have from both aisles of the political spectrum it wouldn’t be possible with the current back-log of cases. The purpose of having the immigration court moved to a process under Article 3 would both remove the executive branch from attempting to establish the political will at the moment (which is currently happening), and also, they would be free from the view of the publics fleeting views. I would hope that judges are not swayed by the ever-changing public thought and would adjudicate solely by what is in the law. Courts currently decide cases with one judge presiding but since they are not tied to the executive branch then they are able to hear cases and decide outcomes because they are impartial and have impartial appellate courts to hold them in check, in most cases regardless of their own personal political party.
(1) https://www.npr.org/2019/08/23/753912351/doj-increases-power-of-agency-running-immigration-court-system
(2) https://www.npr.org/2019/08/23/753912351/doj-increases-power-of-agency-running-immigration-court-system
(3)https://www.naij-usa.org/images/uploads/newsroom/NAIJ_Speaks_on_Major_Change_Announced_to_the_Immigration_Court_System.pdf
Wonderful post Georgi! I agree that immigration courts should be moved from the executive branch. I appreciate your point that while current events highlight a political bias, the issues are fundamental and have existed for years despite politics and the party occupying the White House. It seems like a system that was set up to fail and the current administration has just kicked out what remained of a crumbling foundation. I took a look at the ABA report you referenced (1). The title of the report frames the needed reforms nicely, “Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.” One of the proposals for reform includes Independent Article I Court (for trials and appeals). The report theorizes that an independent court would increase fairness and also professionalism and efficiency as the court is able to recruit high quality judges who will be able to make decisions without fear of sanctions or who are subject to arbitrary orders from the DOJ.
ReplyDeleteAn independent court seems like a reasonable proposal to me, but what other political or financial pressures would an independent court face from Congress?
(1) https://www.americanbar.org/content/dam/aba/publications/commission_on_immigration/coi_complete_full_report.pdf
I agree with Georgi, and immigration courts should be moved from the executive branch to the judicial branch. Instead of the Supreme Court ruling with a weighed, collective mind in the Federal Judiciary, we have the Immigration Courts dependent on one man and his preferential politics. Both, Attorney Generals Jeff Sessions and William Barr, have dramatically shaped the immigration regulations in under a term.
ReplyDeleteSessions began promoting his agenda by redefining the language of immigration. Victims of domestic abuse and gang violence no longer qualified for asylum because they did not belong to a "particular social group,"(1). Then he re-opened closed cases for an already crowded docket with Administrative Closure (2). This overwhelmed already overworked immigration judges and put thousands more at the risk of deportation.
Attorney General William Barr and the EOIR pressed forward with the administrations's goal, passing a new regulation with the Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedent (3), that has expanded Barr's powers to designate the BIA's decisions as precedent without needing a vote. This is significant while we are currently trying to decide which conditions are considered "safe and sanitary" for immigrant children and which are the minimum standards of human decency we are going to accept. For the executive branch, right now, it seems to me the checks and balances need to be checked.
(1) https://www.justice.gov/eoir/page/file/1070866/download
(2) https://www.justice.gov/eoir/page/file/1064086/download
(3) https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-13933.pdf
I appreciate the further insight into the issue of immigration courts. I am not well versed enough in this issue to know if there are unseen ramifications by moving immigration courts away from the executive branch. On first look, yes the extreme backlog up to five years, assembly line court renderings, overworked personnel and political exposure of these courts spanning decades through various administrations it seems like it should be an obvious yes to move immigration courts under the judicial branch along with all the protections, funding and balance of powers that affords. However, what am I missing here as to why scores of elected officials, presidents from both sides of the aisle and the judicial branch itself over decades have not seen the writing on the wall so to speak and already moved on this issue? Is it because immigration courts don't deal with American citizens (primarily) and so it is truly a back burner issue? I would surmise a country's citizens clearly come first and immigrants second in the priority pecking order in all nations. While my personal ethics agree constitutional safeguards should be in place for everyone regardless of where one is born, I can see the place for counter arguments. For example, why should citizens of country "A" pay for free legal counsel of citizens of country "B"? Morally, there is compunction to do so along with offering due process protections and other rights. But just because it is morally right is it legally right? The oversight of immigration courts is more than just a good legal issue to ponder but in my case also has some personal ties and faces based on my family's immigration experiences and other interactions I have had with immigrants and U.S. citizens caught up in the tangle of immigration courts. While there is no quick remediation to the issue, there should definitely be some more judges appointed, funding and support staff to address the very real and personal issues affecting people's lives in dramatic ways.
ReplyDeleteIt's quite comical that in a nation of immigrants with two hundred years of experience, we haven’t figured immigration out. However, I don't think it’s because of a lack of trying. I think it’s because immigration has been weaponized. Immigration to politics is like a joker to a deck of cards. It's a wild card. When someone throws it on the table all the rules seemingly get thrown out. It seems whenever a US president and or a US Presidential candidate wants to stir the pot. They usually throw the immigration card on the table and wait for all the other players to fold.
ReplyDeleteThe INA act was enacted in 1952, an election year. Tasking the AG to create a mini judicial system under the executive branch on an election year seems like a power grab. This was the introduction of the wild card held by the executive branch. Since then it has been used as a weapon under the executive branch with our current President realizing its weapon potential.
In other words, it seems to me like the immigration court system was establish with a fundamental problem that needs to be resolved now more than ever. If the court continues to exist in the Executive branch as an Article 1 court. It will never achieve its potential under the mandate it was established. And it will soon collapse as predicted by the American Bar Association.
With the current state of judges trying to unionize, quotas set by the AG and an overburdened system. The collapse is imminent and within our time in the MLS program.
I agree with Georgi, Congress should remove the immigration judges from the executive branch and relocate them to the judicial branch..
The immigration issue has been long standing for decades and we can't seem to get it right and I don't know why. I do agree with Georgi that we need to look at the process and move it out from under Executive Branch but I am not sure if it should be moved under the U.S. Attorney General. While I do agree that is a better option than the current I wonder if under the U.S. General will that cause other issues such as political and/or "behind the scenes" deals. Regardless of what court it is in the process needs be improved immediately with fair and due process to immigrants as well as more appointed judges to relieve the back logs of cases. I would only imagine that due to the backlog of issues and trying to get through each case day in and day out are the judges really taking each case into consideration fairly and unbiased?
ReplyDeleteThe issue with immigration has been long standing. People have been talking about an opportunity of reform, now more than ever, but no change seem to be occurring. I believe moving the judges to the Judicial branch. If individuals from the The National Association of Immigration Judges and the Federal Bar Association are advocating for an independent immigration court, why are we not doing this? In my opinion, the system is inherently discriminatory and purposely prolonged. While the opposition tries to keep the immigration courts under the Executive branch, Trump's anti- immigration polices will continue. Would this have anything to do with the companies that are profiting by working with U.S Immigration and Customs Enforcement like HP Enterprise Services LLC, The GEO Group Inc, U.S. Bancorp, CoreCivic, Ingenesis... The list goes on.
ReplyDelete