U.S. immigration courts are plagued with an epic backlog of 1.6 million cases and a lack of judicial independence, while also failing to guarantee legal counsel to immigrants at risk of deportation.
Those were some of the issues at stake in a congressional hearing Thursday, chaired by San Jose Democratic Rep. Zoe Lofgren, on the future of America’s beleaguered immigration court system.
With testimony from legal experts and the head of the immigration judges' union, Lofgren built a case for a total overhaul of the system that would remove the courts from the control of the U.S. attorney general — the nation’s top law enforcement officer and a political appointee.
Lofgren, chair of the House Judiciary Committee's Subcommittee on Immigration and Citizenship, called out the administration of former President Donald Trump for stripping immigration judges of their authority to control their dockets and making it harder for immigrants to qualify for asylum.
Although those policies have since been reversed by the Biden administration, she said the courts should be protected from partisan influence regardless of who is in the White House.
“Decades of bureaucratic and political meddling by the governing administration have undermined and eroded public trust in the system,” Lofgren said. “We should find new ways to ensure that immigration courts function as other courts do — where judges have the flexibility and resources to conduct full and fair hearings, due process is held in the highest regard, and parties on all sides have faith in the outcomes of the case.”
Nonpartisan legal organizations with expertise in immigration law have long argued that Congress should create a new immigration court system under Article I of the U.S. Constitution, giving it independent status akin to bankruptcy or tax courts.
Lofgren is preparing to introduce legislation to do just that, in a bill that could be passed by the House this year if Democrats unite behind it. But winning Republican support in the closely divided and deeply polarized Senate would be an uphill battle.
In making the case for an independent court system, Mimi Tsankov, president of the National Association of Immigration Judges, said at Thursday's hearing that her members are overwhelmed by their staggering workload, which averages 2,700 cases for each of the nation’s 580 immigration judges.
“It seems like no matter how hard we work, that backlog we're facing just keeps growing,” she said.
The problem, said Tsankov, largely stems from the court agency, formally known as the Executive Office for Immigration Review, being housed within the Department of Justice.
“The DOJ's control over the courts has yielded extreme pendulum swings, and our apolitical judges are reeling as they navigate their judicial responsibilities on the one hand and heavy political scrutiny,” she said. “We need an independent Article I immigration court. It’s a good government solution. It would legitimize the integrity of immigration court outcomes, and it would support the rule of law.”
Elizabeth Stevens, an immigration expert with the National Bar Association, on Thursday proposed a system in which judges would serve renewable 15-year terms. Appellate judges would be appointed by the president and confirmed by the Senate, and would in turn appoint trial court judges. Under her proposal, a third of the appellate judges would be appointed every five years to ensure that no one president could appoint an outsized share of them, protecting the court from undue political influence.
Rep. Jerrold Nadler, a New York Democrat who chairs the Judiciary Committee, noted that over the last two years Congress has appropriated hundreds of millions of additional dollars to hire new judges. He asked Karen Grisez, a witness from the American Bar Association, why that hadn’t solved the backlog.
The problems affecting the court are complex, and include years of underfunding and continually shifting political priorities, Grisez responded. “And a big one that I would point out is access to counsel,” she added. “The court system would be more efficient if people had lawyers.”
Still uncertain is whether or not a bill to reform the courts would include the right to court-appointed counsel for immigrants who can’t find or afford their own attorneys.
Republicans on the committee laid blame for the immigration court backlog on the growing number of migrants seeking asylum at the U.S.-Mexico border. Wisconsin Rep. Tom Tiffany blasted President Biden for what he called “anti-enforcement and open border policies.”
“It is unfortunate that our United States government now, as a result of the Biden administration's actions, has become the largest human trafficking operation in the world,” he said.
Under U.S. and international law, the federal government is required to give an asylum hearing to anyone who demonstrates a credible fear of being persecuted if returned to their home country.
Andrew Arthur, a former immigration judge and current fellow with the Center for Immigration Studies, a group that favors restrictive immigration policies, also blamed the backlog on the increase in asylum seekers, which he called a “crisis at the border.” He said creating an independent Article I court would not solve the issues immigration judges face, including the need for more funding for law clerks and other support staff.
“Immigration is contentious,” he said. “And Congress, with the power of the purse, could easily starve an immigration court whose decisions it does not agree with.”
But Stevens, of the National Bar Association, argued that the country already has successful examples of Article I courts, and such a reform is the surest route to ensuring that immigration courts run efficiently and independently.
“No simple Band-Aid can fix the current broken system,” she said. “Only through major surgery can the system be restored to full and proper functionality. Let this be the Congress that addresses this problem and solves it.”
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