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ABA testimony supports independent immigration court system

A leader of the American Bar Association recently testified before Congress to support the creation of an independent immigration court system, which would move the courts and judges away from their current position within the U.S. Justice Department.

Since 2006, the ABA has supported removing immigration courts from the control of executive branch cabinet officials.

Since 2006, the ABA has supported removing immigration courts from the control of executive branch cabinet officials.

Karen T. Grisez, former chair of the ABA Commission on Immigration, testified Jan. 20 on behalf of the ABA before the Immigration and Citizenship Subcommittee of the House Judiciary Committee. Grisez is pro bono counsel with the law firm of Fried, Frank, Harris, Shriver & Jacobson LLP in Washington, D.C.

In written testimony, Grisez said U.S. immigration courts will not be truly independent until they are removed from the Justice Department. Under the current system, she said, immigration judges have no statutory protection against removal without cause by the U.S. attorney general or reassignment to less-desirable venues. Also, she said the attorney general can refer cases to himself for consideration, essentially acting as chief judge.

“All of these factors undermine public confidence in the impartiality of immigration judges. … As currently constituted, the immigration courts lack many of the basic structural and procedural safeguards necessary to ensure due process and fair and impartial adjudications,” Grisez said.

Grisez also criticized the U.S. Executive Office for Immigration Review for providing inadequate due process protections in the immigration courts. “Although the immigration courts provide some of the elements of due process under the current system, they fall short of providing full and fair hearings in too many cases,” she said.

In conclusion, Grisez said: “The current structure of the immigration removal adjudication system, housed within the Department of Justice and subject to the direct control of the attorney general, represents an inherent conflict with the principles of independence and fair and impartial courts necessary to satisfy due process. The establishment of an Article I immigration court will address many of the challenges within the current system and we urge Congress to pass legislation to do so as soon as possible.”

Congress has used its Article I powers to create several specialized courts, including the U.S. Tax Court, the U.S. Bankruptcy Court, the U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims. The ABA has supported removing immigration courts from the control of any executive branch cabinet official since 2006.

The congressional hearing also included testimony by Judge Mimi Tsankov, president of the National Association of Immigration Judges; Elizabeth Stevens on behalf of the Federal Bar Association and Andrew Arthur, a resident fellow with the Center for Immigration Studies.

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