On February 3rd, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA) introduced H.R. 6577 – the Real Courts, Rule of Law Act – which would create an independent Article I immigration court.
Article I, Section 8 of the Constitution grants Congress the power to “constitute Tribunals inferior to the supreme Court.” Congress has exercised that authority to create other specialized courts, including the U.S. Tax Court, the Court of Appeals for Veterans Claims, and the U.S. Bankruptcy Court.
H.R. 6577 would establish a new immigration court with a trial division, appellate division, and administrative division. Judges would be appointed for 15-year renewable terms and could be removed only for grounds of incapacity, misconduct, or neglect of duty. The bill imposes specific qualifications for judicial candidates and establishes a merit selection panel to identify and recommend qualified individuals for appointment.
The immigration courts are currently housed within the Department of Justice (DOJ). Immigration judges serve as career DOJ attorneys with no fixed term of office and are subject to the discretionary removal and transfer authority of the Attorney General. They have no statutory protection against removal without cause or reassignment to less desirable venues or dockets. In addition, under the current certification process, the Attorney General can refer cases to him or herself for consideration, essentially acting as chief judge.
This lack of independence in the current structure undermines the integrity of the court system and adversely impacts due process for noncitizens in removal adjudications. Since 2006, the ABA has supported restructuring the courts, so they are not controlled by any executive branch cabinet officer. In 2010, the ABA adopted a policy specifically recommending the creation of an independent Article I immigration court.
On January 20, Karen Grisez, former chair of the ABA Commission on Immigration, testified on behalf of the ABA at a hearing of the House Judiciary Committee’s Subcommittee on Immigration and Citizenship, noting the significant challenges presented by the current system and stating the association’s support for an Article I immigration court. Witnesses from the Federal Bar Association and the National Association of Immigration Judges also testified at the hearing. The ABA has for several years worked in cooperation with these organizations as well as the American Immigration Lawyers Association to promote the introduction of legislation to establish an independent court. All four organizations have endorsed H.R. 6577.
Follow us @ABAGrassroots to learn more as developments occur.