Judge: Congress must free immigration courts from DOJ ‘bureaucracy’ to survive.
The Immigration Court System in Crisis: A Call for Independence
The immigration court system has crumbled in recent years and stands no chance of addressing the influx of border cases unless Congress breaks it free of government “bureaucracy,” according to a spokesperson for the 700 judges nationwide.
The National Association of Immigration Judges President Mimi Tsankov testified before the Senate Judiciary Committee on Wednesday that her peers within the Executive Office for Immigration Review at the Department of Justice agree a major overhaul decoupling the court and government is the only conceivable means of “healing” a crippled court, where the situation has only declined year after year.
Independence for a Functional Immigration Court
“Only an independent Article One immigration court can fix the problems that plague the immigration court,” Tsankov, a judge of 17 years who is based in Charlotte, North Carolina, said. “It would reduce the backlog because it would eliminate the DOJ bureaucracy.”
Immigration judges decide cases based on precedents issued by the Board of Immigration Appeals and the U.S. attorney general and federal courts. When a new attorney general is confirmed by the Senate to oversee the Justice Department, the attorney general has the authority to “essentially rewrite” how parts of immigration policy are interpreted and enforced, Tsankov said.
“Control over the courts has resulted in extreme pendulum swings across subsequent administrations,” Tsankov said. “Our judges must navigate their judicial responsibilities on the one hand, and heavy political scrutiny on the other.”
That rewriting of how an administration wants to carry out existing immigration laws has led to two problems: opening judges to political pressure for not abiding by one administration’s instruction and increasing the likelihood that an immigrant appeals a judge’s decision.
“[For] all of the parties that are appearing before us, [it] also creates incentives to appeal unfavorable rulings, because an unfavorable ruling today based on the law, as it stands today, might be more favorable a few years down the road when a new attorney general is appointed,” Tsankov, who added that the appeals of decisions further burden the backlog, said.
Tsankov has been an immigration judge during the Biden, Trump, Obama, and Bush administrations, where she has seen each attorney general shift how judges should proceed in cases. It was not a huge issue until the past decade, as the number of new cases due to illegal immigration at the southern border began to increase.
The immigration court backlog doubled during the Trump administration and has since climbed under President Joe Biden to more than 2 million pending cases.
Since Biden took office in January 2021, more than 5 million people have illegally crossed the southern border between ports of entry. More than 2 million people have been apprehended and then released into the United States with a notice to appear in one of the 70 immigration courts nationwide closest to where they are resettling.
In an effort to get to more cases while immigrants were in custody at the border rather than years down the road after being released, the Biden administration has asked judges to serve for a period on the border.
“With the recent high levels of migration at the border related to migrants bypassing the lawful pathways rule, many judges are being pulled from their home court dockets to handle border matters. These special assignments brought on by real need nevertheless wreak havoc on our home court docket,” Tsankov said. “The consequence is a ballooning backlog.”
Tsankov was temporarily sent to the border town of Laredo, Texas, this past summer to hear cases, which forced her to reschedule for 2027 hearings in North Carolina that were already on the books.
“Each new administration has different docketing priorities. And that shuffling of the docket results in Judges being at one in one administration sent to the border and their whole home court dockets languished for extended periods of time,” she said. “It’s the docket shuffling and the issue with the changing case law that I think is the most problematic for our court.”
Right now, Tsankov can schedule four hearings per day, and the average judge across the 70 courts nationwide has 3,700 cases on their docket.
By pulling the courts out from under the DOJ, the attorney general would no longer have say over the judges, resulting in no more political scrutiny of their decisions and pressure on them, as well as fewer cases likely getting appealed and causing more delays.
Judges would be responsible for managing their own resources and dockets just as federal and state courts do. Moving the immigration courts out from under the DOJ would require an act of Congress but “begin the process of healing this broken system.”
But plenty more needs to be done, including a mass hiring spree of Immigration judges are short of law clerk support, interpreters, and legal assistants. Space is also a dire problem at her office, where hallways are filled with “years’ worth of paper files” waiting to be scanned.
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What are the immediate issues caused by government interference in the immigration court system?
Me courts to serve in temporary courts at the border,” Tsankov said. “Not only does this disrupt their workload and caseload back home, it also does very little to address the overall backlog.”
Furthermore, the pressure on immigration judges to make quick decisions at the border without proper resources and time for thorough adjudication raises concerns about due process and the fairness of the proceedings.
An Independent Article One Court System
Advocates for an independent immigration court system argue that it would not only address the immediate issues caused by government interference but also generate long-term solutions. An independent Article One immigration courthouse would ensure that judges have the freedom to apply the law fairly and impartially, rather than being subjected to political pressures and policy changes.
An independent court system would allow for the appointment of judges based on their qualifications, experience, and expertise in immigration law, rather than on their alignment with a specific administration’s agenda. This would ensure a more consistent interpretation and application of immigration law, reducing the likelihood of appeals and further backlog.
In addition, an independent immigration court system would have the authority to advocate for more resources and support to efficiently address the backlog of cases. This could include hiring more judges and staff, implementing technological advancements to streamline processes, and ensuring adequate training and resources for judges to make well-informed decisions.
By decoupling the immigration court system from the Department of Justice, an independent court would restore public confidence in the fairness and integrity of the adjudication process. It would provide a stable and predictable environment for immigration judges to fulfill their judicial responsibilities without the fear of political repercussions.
Conclusion
The current state of the immigration court system is a crisis that urgently requires intervention. The backlog of cases continues to grow, leading to delays in the processing of immigration cases and exacerbating the challenges faced by immigrants seeking justice.
An independent Article One immigration court system would be a crucial step towards addressing this crisis. It would not only alleviate the burden of bureaucracy and political interference but also establish a fair and efficient process for resolving immigration cases. The appointment of qualified judges, the consistent interpretation of immigration law, and the allocation of necessary resources would ensure timely and just outcomes.
Congress must heed the call for independence from the National Association of Immigration Judges and take swift action to reform the immigration court system. It is essential to uphold the principles of due process, fairness, and justice for all individuals seeking resolution within the immigration court system.
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