Immigration Court Bill Would Give Judges Independence, Tackle 1.6M Case Backlog

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A close shot of Zoe Lofgren, a middle-aged white woman with shoulder-length blond hair and glasses, wearing large earrings and a dark blue blazer, speaks into a microphone in front of an American flag.
U.S. Rep. Zoe Lofgren (D-San Jose) questions witnesses during a hearing by the House Select Committee investigating the January 6 attack on the U.S. Capitol on July 27, 2021, at the Cannon House Office Building in Washington, D.C.  (Chip Somodevilla/Getty Images)

San Jose Rep. Zoe Lofgren is introducing a bill today to transform the nation’s troubled immigration courts and protect them from partisan influence by making them independent of the Department of Justice, which is led by the U.S. attorney general — the nation’s top law enforcement officer and a political appointee.

The bill would create a new immigration court system under Article I of the U.S. Constitution, giving it independent status akin to bankruptcy or tax courts. It would include measures to ensure that judges are qualified and impartial, that rulings and court procedures are transparent to the public, and that the court’s budget does not depend on approval by the executive branch.

There's a lot at stake in immigration court, yet the current system is not structured to deliver justice fairly, said Lofgren, a former immigration lawyer and chair of the House Judiciary Committee's Subcommittee on Immigration and Citizenship.

“You could be separated from your family for the rest of your life. In the case of asylum, if a decision is made incorrectly, it quite literally could result in death,” she said. “[Yet] the judges themselves are appointed by the Department of Justice. They're not at all independent. So it's not a real court in the way we think of, and the stakes are very, very high.”

The current system, formally known as the Executive Office of Immigration Review, is also plagued by underfunding, an unprecedented backlog of 1.6 million cases, and a lack of protections for the rights of immigrants who appear in court to request asylum or fight deportation, observers say.

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Separating the courts from the political pressure of the president and attorney general — regardless of party — is an important step in bringing legitimacy and fairness to immigration decisions, said Pratheepan Gulasekaram, a professor of constitutional law and immigration law at Santa Clara University.

“When people hear the word ‘court,’ they generally think of a state court where you have district attorneys, defense attorneys, where — everyone knows about Miranda rights — if you cannot afford an attorney, one will be appointed for you,” he said. “What I don't think people understand is that none of those Bill of Rights protections — that you see in police procedural shows on television — apply in immigration courts. And I think just the fact that you have legislation that highlights how bankrupt this system is … is a great service.”

An independent court system has long been sought by the immigration judges union. Under former President Donald Trump, attorneys general stripped the judges of their authority to control their dockets, imposed case completion quotas and took steps to dismantle their union. The administration of President Joe Biden has acted to reverse these moves.

“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,” said Mimi Tsankov, president of the National Association of Immigration Judges, at a hearing last month before the House immigration subcommittee. An independent Article I immigration court is “a good government solution,” she said.

The American Bar Association, the Federal Bar Association and the American Immigration Lawyers Association also support an independent immigration court system, and worked with Lofgren’s staff to craft the new bill. It’s the first such legislation in over 20 years, according to a Lofgren aide.

Under the proposal, appellate judges would be appointed to staggered 15-year terms by the president and confirmed by the Senate, and would in turn appoint trial court judges. One third of the appellate judges would be appointed every five years to ensure that no one president could choose an outsized share of them, protecting the court from undue political influence.

The courts would be required to contract with nonprofit organizations to give legal orientations explaining the law and court procedures to everyone appearing in court. Immigrants would have the right to be represented by a lawyer, as they do now, but the bill does not propose providing counsel at government expense.

If enacted, the bill could help reduce the historic backlog in the courts by giving judges greater power to set aside cases where an immigrant is waiting for the government to process a green card or another legal way to remain in the country. But Lofgren acknowledged it would not eliminate it.

The Department of Homeland Security would still control how many cases it chooses to prosecute. However, last May, Biden administration officials restored the discretion that Immigration and Customs Enforcement prosecutors had during the Obama years to focus on deporting recently arrived unauthorized immigrants and those who pose a threat to national security or public safety.

Another measure that could affect court backlogs is a not-yet-final rule the Biden administration has proposed that would shift most asylum claims out of the immigration court system and decide them at the DHS asylum office.

Lofgren admitted that it could be an uphill battle to pass the bill in a polarized Congress. She said legal organizations had identified a number of Republicans who were open to the bill but unwilling to commit to be co-sponsors.

I finally thought, I'm just going to introduce it myself, get it out there, and then people can see what it is and get comfortable with it,” she said. It's quite possible it won't happen in this Congress. It may take more than one Congress, but it's important to get the idea out there.”

Overhauling the courts is not a particularly partisan issue, said Gulasekaram, and pitching a stand-alone bill could potentially get more bipartisan support than if it were attached to a larger immigration reform effort.

It might be the case that lots of people from different parts of our political spectrum are interested in lowering the backlog in immigration courts and making adjudications more fair,” he said.

But at last month’s hearing, Republicans on the immigration subcommittee were dismissive of an independent court system. Instead, they sought to focus attention on the U.S.-Mexico border, where asylum seekers from Central America and elsewhere have arrived in large numbers, and use that to attack Biden and Democrats for what they called “open border” policies.

But Lofgren said she’s determined to get the issue into the public eye.

“You never know when immigration issues touch your community or your family,” she said. “We should all be for the rule of law, and that's what this is about. And I hope that it prevails.