On July 11th, the ABA joined the American Immigration Lawyers Association, Federal Bar Association, and National Association of Immigration Judges in calling for the establishment of an independent immigration court.
Currently, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor. In a joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”
The immigration courts issue life-altering decisions each day that may deprive individuals of their freedoms, separate families, and in the case of those seeking asylum may be literally a matter of life or death. Yet the system lacks the basic structural and procedural safeguards that we take for granted in other areas of our justice system. These structural and procedural issues have contributed to a historic backlog of approximately 900,000 cases even though in recent years Congress has added resources, including a sizable increase in the number of judges and support staff.
In 2006, the ABA specifically called for ensuring the neutrality and independence of immigration judges, and of any federal agency by which they are employed, so that they are not subject to the control of any executive branch cabinet officer. In 2010, the ABA Commission on Immigration partnered with the law firm of Arnold & Porter to undertake a multi-year study of the immigration removal adjudication system, resulting in a comprehensive report with more than 80 recommendations. It ultimately called for the creation of an independent Article I immigration court and the ABA adopted that recommendation.
The proposal to create an Article I court to replace the current immigration adjudication system is not new or novel. In 1981, the congressionally-created Select Commission on Immigration and Refugee Policy made such a recommendation in its final report. In addition, several bills were introduced in the House of Representatives by former Congressman Bill McCollum (R-FL) in the late 1990s. While no legislation is currently pending to restructure the court, the burgeoning crisis and need for reform has been a subject of congressional attention in recent years. In April 2018, then-ABA President Hilarie Bass testified at a Senate Judiciary Committee hearing on strengthening and reforming the immigration court system, making the case for an independent Article I court.
Restructuring the immigration adjudication system into an Article I court is the best solution to promote independence, impartiality, efficiency and accountability. The ABA will continue to work individually and in collaboration with other stakeholders to achieve this goal.
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