The theme of this issue of The Judges’ Journal is the loss of judicial independence by the immigration courts, but I see a preliminary question: Have our immigration courts ever been truly independent?
I would argue they have never truly had judicial independence, a crucial need for any judicial system. Because one cannot lose what one never had, the issue as I see it is not a loss of independence for the immigration judges, but rather the need for a new structure that ensures them judicial independence. This article will examine lack of—rather than loss of—judicial independence in the immigration courts.
The ultimate compelling reason why a new structure is needed is that without an independent court structure, our immigration courts are not fulfilling their constitutional duty to provide due process. The U.S. Constitution requires that the federal government accord due process to all persons who face deprivation of life, liberty, or property: “No person shall be . . . deprived of life, liberty, or property, without due process of law. . . .”1 Persons in removal proceedings face possible deprivation of all three: life, liberty, and property.
Removal proceedings are a federal function, administered by the immigration courts. The immigration courts are housed in the U.S. Department of Justice (DOJ), headed by the attorney general of the United States. Housed as they are in the nation’s highest-level prosecutorial agency, there is a structural flaw that makes the immigration courts and their judges subject to, not independent of, one of the parties to the cases before them, a prosecutorial party motivated by political policy objectives rather than the impartial administration of justice.
The issue to be addressed is not a loss of the judicial independence once held by the immigration courts but the need for a new structure that incorporates independence. That independence can be achieved by an Article I immigration court created by Congress. For courts created by Congress, judicial independence is built in. The Tax Court statute, for example, contains the following specific language: “The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.”2 Accountability is ensured by the appellate process, through appeals within the federal court structure, ultimately up to the U.S. Supreme Court.
The structural flaw faced by the immigration courts has been recognized for decades. This article will chronicle the major calls over the years for an Article I immigration court to eliminate that flaw and then summarize the reasons for those persistent calls. Interestingly, the basic reasons have not changed over time. However, they have become more dire.
Calls for establishment of an immigration court to ensure judicial independence date back at least to 1979. In 1979, the National Association of Immigration Judges (NAIJ) drafted a proposed bill to create an Article I immigration court that it submitted to the Select Commission on Immigration and Refugee Policy (the Select Commission or Commission), a congressionally created body charged with studying U.S. policy and making recommendations for the future. I recall seeing the NAIJ draft shortly after I joined the immigration court in September 1980.3
In March 1981, the Select Commission issued its final report. It recommended establishment of an Article I court: “THE SELECT COMMISION RECOMMENDS THAT EXISTING LAW BE AMENDED TO CREATE AN IMMIGRATION COURT UNDER ARTICLE I OF THE U.S. CONSTITUTION.”4
Peter Levinson, who served the Commission as a legal research associate, was charged with studying the existing federal administrative courts. In his report to the Commission, entitled Immigration Hearings and Appeals, A Structural Study (June 1980), he advocated for the creation of an Article I immigration court and attached draft language for a bill to create it.5 His unpublished paper was submitted to the Commission in August 1980.
While the Select Commission was examining the issue, former Board of Immigration Appeals (BIA) Chair Maurice Roberts authored a law review article entitled “Proposed: A Specialized Statutory Immigration Court” to which he attached his own draft bill for an Article I immigration court. Roberts credits Levinson’s draft bill as the inspiration for his own and mentions the NAIJ draft bill, which he characterizes as “A much more detailed and intricate draft bill. . . .”6 The text of Roberts’s draft bill was attached in the appendix to his article.7
As noted above, in its Final Report, issued in March 1981, the Select Commission reached the same conclusion as NAIJ, Levinson, and Roberts when it issued a formal recommendation for the creation of an immigration court. The Select Commission did not endorse any particular language for a bill.
The proposals to create an Article I Court came to the attention of Rep. Bill McCollum (R-FL), who served on the House of Representatives Immigration Subcommittee and became its chairman. McCollum first introduced a bill to create an Article I Court on March 1, 1982. The bill had a bipartisan group of 15 cosponsors—11 Democrats and 4 Republicans.8 On March 9, 1982, Rep. Daniel Mica (D-FL), a cosponsor of McCollum’s bill, introduced his own bill, H.R. 5771, entitled Immigration Court and Procedure Reform Act of 1982.9 Both bills were referred to the Immigration Subcommittee. Neither advanced. McCollum tried again in the late 1990s. He introduced bills to create an immigration court in three successive sessions of Congress: 1996, 1998, and 1999.10 Again, the bills did not advance.
Calls for creation of an immigration court have not abated. In 2007, Judge Dana Leigh Marks, then president of the NAIJ, wrote an article calling establishment of an Article I immigration court “an urgent priority.”11
In 2010, the American Bar Association (ABA), after an exhaustive study, published a detailed report entitled Reforming the Immigration System.12 The ABA report, prepared by its Commission on Immigration, stated that creation of an independent Article I immigration court was its number 1 choice of three alternatives it considered.
The Federal Bar Association (FBA), another national legal organization, started urging Congress in 2013 to establish a specialized United States immigration court. In 2019, FBA took the additional step of preparing a draft bill to create a United States immigration court, which it has sent to members of Congress and the relevant congressional committees.
In March 2019, the ABA published an updated report, with an unequivocal endorsement of the creation of an Article I immigration court as the only option that should be considered. Lead by the ABA, the nation’s largest legal organization, many have called for Congress to establish an Article I immigration court. Nearly 200 groups ranging from legal, judicial, and immigration, to civil rights, faith-based, labor and government accountability all have urged this restructuring of the immigration court system.
Bringing this history up to the present, in a late-breaking development on February 3, 2022, Congresswoman Zoe Lofgren (D-CA), chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, a bill to create an Article I immigration court. H.R. 6577 is entitled The Real Courts, Rule of Law Act of 2022. In her press release introducing the bill, she cited a statement submitted in support by ABA President Reginald M. Turner:
The American Bar Association has high regard for the mission and goals of the Justice Department, but we strongly support the creation of an independent Article I immigration court system. It is essential that every judge is free to decide cases based solely on the facts and the law, without external pressure or influence.13
H.R. 6577 is cosponsored by House Judiciary Committee Chair Jerrold Nadler (D-NY) and Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet Hank Johnson (D-GA).
In sum, the fact that the structural flaws of our current immigration court system have long been recognized, and that calls for its restructuring have now dramatically increased, are compelling reasons to adopt the obvious solution that has long been advocated. Various lesser solutions have been tried, but the problems with and lack of confidence in the immigration court system have intensified.
The basic reasons for an Article I immigration court have not changed since the idea was first advanced. In a nutshell, there is a need for true judicial independence to ensure due process.
So, what is due process, and does it vary depending on the type of case or the parties? While there may be no comprehensive description of due process, at a minimum, for adversarial hearings such as those conducted by immigration courts, whatever the type of case or the status of the parties, due process requires impartial adjudicators
- with no conflict of interest;
- who are not beholden to political or other outside influence;
- who are not subservient to any of the parties to the case;
- who decide the cases before them solely on the law and the facts of the case, on a record jointly developed by the parties;
- at a proceeding of which all parties have had fair notice and opportunity to participate, present evidence and testimony, be served with the evidence of the other party/parties, and hear the testimony presented to the adjudicators.
Whatever variables there are in the procedures offered, the above elements are essential elements of due process for all proceedings.
The structural flaw in the current immigration court system is the conflict of interest for the immigration courts to be housed in a political agency that represents one of the parties. Testimony by then ABA President Judy Perry Martinez at a congressional hearing on January 29, 2020, succinctly captured the essence of the fatal flaw when she stated:
The immigration court’s continued existence within the Department of Justice, with its personnel and operations subject to direct control by the Attorney General, who is also the chief law enforcement officer for the Federal government, is a fatal flaw to the reality, and perception, of independence.14
The core principle of any fair adjudication system must be that independent and impartial judges decide cases on the merits, evaluating the facts and the law in each case, after a hearing that fully comports with due process. The current immigration court system fails to meet those goals in many respects. It is time for Congress to establish a truly independent Article I court.15
For a proceeding to be fair, for the judge to be able to exercise decisional independence, there has to be freedom from political oversight. Political input is properly exercised in the passage of the laws that the judges are bound to apply, but not by interference in adjudication. There can be no impartiality when judges can be directed how to rule by political appointees, when the prosecutorial side of a case can arrange for the rules to be changed in its favor while a case is proceeding, or when judges to be reassigned when decisions are displeasing to political officials.
The specific structural problems that have been identified throughout include the power of the attorney general over the immigration courts. The attorney general, who is the nation’s top law enforcement officer:
- selects all immigration judges, at both the trial and appellate level,
- can reverse their decisions—even when not appealed,
- can set policy binding on the legal issues,
- can provide procedural direction that can affect the outcomes, and
- can reassign cases if displeased with a particular judge’s handling of a case or group of cases.
These political policy influences interfere with immigration judges’ responsibility to be impartial decision-makers who can administer due process, as guaranteed by the Constitution’s Fifth Amendment.
The main structural issue of concern throughout has been the comingling of political, policymaking functions with the functions of adjudication, with the subservience of adjudicative functions to prosecutorial functions. This conflict of interest undermines both the neutrality and the appearance of neutrality of adjudicators.
Previously, critics focused primarily on the appearance of bias built into the structure that placed the immigration courts within the agency it was judging, though the fatal flaw was recognized. Instead of following the recommendation of the Select Commission to fix the flaw by creating an Article I immigration court, partial steps were taken that did not require congressional action. In 1983, the immigration judges were removed from the Immigration Service, then a subagency of the DOJ, and placed in a new DOJ agency entitled the Executive Office for Immigration Review (EOIR) that combined the judges with the BIA. Later, when the Department of Homeland Security (DHS) was created after the 9/11 attack, EOIR remained in DOJ. However, even the transfer of Immigration and Naturalization Service to DHS left the judges exposed to political pressure.
Well-meaning, conscientious immigration judges have, for years, acted impartially. I remember well the admonition of my new colleagues when I became an immigration judge—to exercise judicial independence when making decisions. We thought it was a given that our decisional independence was not to be the subject of agency interference, that it was to be respected. The regulations specifically codify that understanding.16 The understanding that the DOJ would respect our judicial decisional independence seemed to work—until it did not.
Shortly after the attacks on 9/11, Attorney General John Ashcroft issued a memo that certain respondents, on a list he created, were not to be released on bond, notwithstanding that they were eligible for consideration for bond under the regulations. A couple years later, he removed five appellate immigration judges, whose decisions displeased him, from their judicial positions on the BIA and reassigned them.
His successor, Attorney General Alberto R. Gonzales, instituted performance evaluations of immigration judges by management officials, an action that had been deemed inconsistent with the judicial function by EOIR’s initial chief judge, William Robie. During the Trump administration, the attorneys general abrogated the understandings about decisional independence of the immigration judges even more severely. Thus, what had been an appearance of lack of independence turned into clearly visible lack of independence, thereby exposing the fact that under the current structure, there is an actual lack of judicial independence, not merely an appearance of one. The last few years have shown that the structure itself allows for direction from political appointees, which can be exercised at any time. Forbearance on the part of a new set of DOJ higher-ups cannot be relied on to ensure judicial independence on a stable basis.
Encroachments on the actual judicial decision-making independence of the immigration judges intensified dramatically during the Trump administration. A letter to Congress dated March 30, 2020, from the Alliance for Justice, a national association representing 120 groups, presents a scathing indictment of the actions taken by the then current administration to interfere with the decisional independence of the judges. We quote it here, with its strident language, as an example of the outrage those actions produced:
We are deeply troubled by the [DOJ]’s exploitation of its position as the superintendent of our nation’s immigration courts to advance its anti-immigrant agenda. The Department’s actions have turned [what] should be a fair adjudicatory system into one designed to dictate outcomes favorable to the anti-immigrant zealots in the Administration. The Department has engaged in a range of efforts designed to deprive individuals who have valid claims of asylum of the opportunity to present those claims. It has sought to influence immigration judges by incentivizing them to summarily deny claims. It has urged judges to adopt its conspiratorial views about the immigration lawyers who appear before the courts.
The letter quotes from a highly critical policy report jointly issued by the Innovation Law Lab and the Southern Poverty Law Center entitled The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.17 The report subtitle itself displays its low opinion of the impartiality of the immigration court. It concluded that the administration effectively achieved control over the immigration judges.
Below is a list of actions that were seen as attacks on judicial independence during the Trump administration.
- Performance metrics tied to discipline and possible termination were imposed, setting quotas on the number of cases completed, the time frame for completions, and the number of cases reversed or remanded.
- Cases were reassigned when a judge’s actions displeased headquarters.
- Personnel choices were politicized.
- Rules were adopted that gave the EOIR director, and later his director of policy, a decisional role to decide any appeals that had been pending over 180 days.
- The attorneys general utilized the self-certification process to bypass the appeals process and to issue precedent decisions that created limits on the judges’ ability to manage their dockets, by proscribing and restricting use of docket management tools such as administrative closure, continuances, and termination.
- Regulations were adopted to codify the above restrictions on judicial docket management as well as to limit the grounds on which the judges could grant asylum applications, notwithstanding many of these new rules conflicted with federal court case law and longstanding BIA precedents.
- Regulations were adopted that restricted the judges’ consideration, at both the trial and the appellate level, of motions to reopen and reconsider.
- Regulations were adopted that restricted access to appellate review by imposing a huge fee increase and other procedural barriers.
- Public access to the immigration courts was restricted by setting up Adjudication Centers with limited public access and by forcing thousands of respondents to wait in Mexico during the pendency of their hearings, creating barriers to their access to counsel.
- Actions were taken to deny applicants the opportunity to present their cases to immigration judges in possible violation of U.S. treaty obligations under the Refugee Protocol to which the United States is a signatory.
- Actions were taken to silence the judges by instituting a near blanket refusal of approval for outside speaking engagements and moving to decertify the collective bargaining status of the National Association of Immigration Judges, whose status permits its union leadership to speak out collectively, independent of management control.
- Attorney General Jeff Sessions told the judges at a training conference that they are part of the law enforcement function of the DOJ.
Some of the policies were motivated by attempts to reduce the backlog of cases. However, they failed to achieve that objective. The number of pending cases nearly tripled during the years of the Trump administration.18
The gradual steps taken from time to time to amend the structure have failed to protect the decisional independence of the immigration judges. To the contrary, encroachments on the judicial independence of the immigration judges increased severely over time. While a number of the most egregious of the policies adopted by the last administration have been reversed by the current administration, many have not. Most importantly, the mere fact that the power exists to constrain judicial decision-making presents a real danger. The fact that the power has been exposed increases the risk that another administration could reinstate those constraints. The current administration may think that it can fix the problems of the immigration courts by making internal changes. They can certainly improve things, but changes made by one administration can be undone by another.
The structural flaw presented was cited recently by the New York Times Editorial Board in a Sunday lead editorial:
[Immigration Judges] are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.19
The editorial characterizes the situation as “structural rot at the core of the nation’s immigration courts.”
The fact that the pressures have gotten to the judges in ways affecting their decision-making has not gone unnoticed by reviewing courts. The very week this article was being drafted, the U.S. Court of Appeals for the Ninth Circuit published a decision finding that the BIA had failed to accord due process to an unrepresented litigant.
In summary, Petitioner’s Notice of Appeal was sufficiently specific to inform the BIA of two issues that she was challenging, given her status as a pro se litigant. Therefore, the BIA violated her right to due process by summarily dismissing her appeal.20
The court found that, by overlooking points the respondent had raised on her appeal form, the BIA had erroneously concluded that the respondent had failed to set out specific arguments in support of her appeal. Accordingly, the court ruled, the BIA had denied her due process. The Nolasco-Amaya decision, issued contemporaneously with the preparation of this article, illustrates emphatically the continued relevance of the need to restructure the immigration court so its judges do not feel pressure to disregard due process in order to satisfy production goals set by superiors. Due process is at the heart of the immigration court’s function to conduct adversarial adjudications wherein loss of life, liberty, or property is at stake.
Other federal courts have been highly critical of the BIA. In January 2020, a decision by the U.S. Court of Appeals for the Seventh Circuit expressed disbelief at the BIA’s decision to ignore its binding remand order because the attorney general had disagreed with it. The court, having “never before encountered defiance of a remand order,” warned that the BIA must count themselves lucky not to have been held in contempt.21
In December 2019, the U.S. Court of Appeals for the Third Circuit expressed concern that the BIA was operating not as an impartial appellate tribunal but as a mechanism to ensure deportation:
. . . [I]t is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring [the petitioner’s] removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.22
The need for restructuring so the immigration courts can be neutral and fair could not be more stark. We end with a quote from Congresswoman Zoe Lofgren, chair of the House Subcommittee on Immigration and Citizenship:
[T]he immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.
—Rep. Zoe Lofgren, D-San Jose, CA, Chair of the House Judiciary Subcommittee on Immigration and Citizenship23
On February 3, 2022, as referenced above, Congresswoman Lofgren introduced The Real Courts, Rule of Law Act of 2022, H.R. 6577. Her office announced introduction of the bill with a press release stating:
The Real Courts, Rule of Law Act of 2022 creates an independent “Article I” immigration court, free from the political influence of the Executive Branch
WASHINGTON, DC—Today, U.S. Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, The Real Courts, Rule of Law Act of 2022, a bill that transitions the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution. The bill will ensure that the immigration courts are administered by qualified, impartial judges; have adequate court resources and support services; are defined by transparency and integrity; and are financially independent.24
We look forward to enactment of The Real Courts, Rule of Law Act of 2022.
1. U.S. Const. amend. V.
2. 26 U.S.C. § 7441. The sentence quoted was added by an amendment. See also the website of the U.S. Administrative Office of the Courts, an office within the Judicial Branch, which lists Article I Courts as within their purview: Court Role and Structure, U.S. Courts, https://www.uscourts.gov/about-federal-courts/court-role-and-structure.
3. While NAIJ appears to have no copy in its current records, its draft bill was referenced in a law review article by Maurice Roberts, former chair of the Board of Immigration Appeals [BIA], published in December 1980. See Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1 (1980), https://digital.sandiego.edu/sdlr/vol18/iss1/2.
4. Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners, Submitted to the Congress and the President of the United States Pursuant to Public Law 95-412, at 248, Recommendation § VII.C.1 (Mar. 1, 1981), https://files.eric.ed.gov/fulltext/ED211612.pdf.
5. Levinson’s paper was unpublished. His paper and draft bill are housed in the archives of the Select Commission. A follow-up law review article providing background for his reasoning was published in 1981. Peter J. Levinson, Specialized Court for Immigration Hearings and Appeals, 56 Notre Dame L. Rev. 644 (1981).
6. See Roberts, supra note 3, at 19, n.63.
7. Id. Roberts’s draft bill is at page 21, in the article’s appendix.
8. For a summary of H.R. 5649, see https://www.congress.gov/bill/97th-congress/house-bill/5649.
9. For a summary of H.R. 5771, see https://www.congress.gov/bill/97th-congress/house-bill/5771.
10. Immigration Court Act of 1999, H.R. 185, 106th Cong. (1999); United States Immigration Court Act of 1998, H.R. 107, 105th Cong. (1998); United States Immigration Court Act of 1996, H.R. 4258, 104th Cong. (1996).
11. Hon. Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, Benders Immigr. Bull., Jan. 1, 2008.
12. Arnold & Porter LLP, Am. Bar Ass’n Comm’n on Immigr., Reforming the Immigration System (2010), https://www.americanbar.org/content/dam/aba/publications/commission_on_immigration/coi_complete_full_report.authcheckdam.pdf.
13. Press Release, Zoe Lofgren, U.S. Congresswoman, Lofgren Introduces Landmark Legislation to Reform the U.S. Immigration Court System (Feb. 3, 2022), https://lofgren.house.gov/media/press-releases/lofgren-introduces-landmark-legislation-reform-us-immigration-court-system.
14. Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts: Hearing before the Subcomm. on Immigr. & Citizenship, H. Comm. on the Judiciary, 116th Cong. 9 (Jan. 29, 2020) (statement of Judy Perry Martinez, President, Am. Bar Ass’n), https://docs.house.gov/meetings/JU/JU01/20200129/110402/HHRG-116-JU01-Wstate-PerryMartinezJ-20200129.pdf
15. Id. at 11.
16. 8 C.F.R. § 1003.10(b).
17. Innovation Law Lab & S. Poverty Law Ctr., The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool (June 2019), https://www.splcenter.org/sites/default/files/com_policyreport_the_attorney_generals_judges_final.pdf.
18. When Trump took office, the total backlog was 542,411 cases. When he left office, the backlog was about 1,290,766 cases.
19. Editorial Bd., Immigration Courts Aren’t Real Courts. Time to Change That., N.Y. Times (May 8, 2021), https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html?action=click&module=Opinion&pgtype=Homepage.
20. Nolasco-Amaya v. Garland, 14 F.4th 1007 (9th Cir. 2021).
21. Baez-Sanchez v. Barr, 947 F.3d 1033, 1035–36 (7th Cir. 2020).
22. Quinteros v. Att’y Gen. of U.S., 945 F.3d 772, 789 (3d Cir. 2019) (McKee, J., concurring).
23. Tal Kopan, Justice Department Cancels Diversity Training, Including for Immigration Judges, S.F. Chron. (Oct. 9, 2020), https://www.sfchronicle.com/politics/article/Justice-Department-cancels-diversity-training-15635203.php.
24. Lofgren Press Release, supra note 13.