Immigration courts have always had a structural problem. That’s because they are organized under the Department of Justice and headed by the attorney general under the executive branch. Both immigration judges and the assistant chief counsels, the so-called prosecutors in immigration court, work for the attorney general, and they can be fired at any time. In this sense, the Justice Department is judge, jury, and executioner in immigration court.
Federal courts, on the other hand, enjoy a significant degree of independence because they are organized under Article III of the Constitution. Federal judges receive lifetime tenure precisely to avoid influence by threats to their livelihood. This is what is known as our system of checks and balances.
Although they are flawed, immigration courts and the Board of Immigration Appeals have worked reasonably well in the past, when attorneys general have had less direct influence on the courts’ day-to-day operations. That is no longer the case. On October 1, 2018, a new job performance policy for immigration judges went into effect. The new quota system, promulgated by Attorney General Jeff Sessions, requires that immigration judges adjudicate a certain number of cases each year, and that they render those decisions in a certain amount of time, among other requirements.
Mr. Sessions also has directed decisions in immigration cases that have had the effect of further restricting options for immigrants in court. For example, his decisions have limited the use of administrative closure, a remedy that puts removal cases on hold where another avenue of relief becomes available, such as marriage to a citizen. Other decisions by Mr. Sessions have restricted the government’s discretion to terminate cases, or to grant adjournments to permit immigrants to retain counsel. He also has imposed several restrictions on asylum seekers. These policy changes have been decried by the American Immigration Lawyers Association and the National Association of Immigration Judges as the “death knell for judicial independence.”
The American Immigration Lawyers Association has called for the creation of a more independent immigration court system under Article I of the Constitution. Article I courts are created by Congress, and they enjoy a significantly higher level of independence, albeit not at the level of Article III federal courts. Tax courts and bankruptcy courts are examples of Article I courts. Although Article I judges do not have lifetime tenure, they typically are appointed for 14 or 15 year terms, and their salaries are controlled by Congress. Article I courts operate remarkably similarly to Article III courts, in the sense that they are adequately staffed and do not face unreasonable docket backlogs.
On the enforcement side, arrests by Immigration and Customs Enforcement, the agency that essentially is the immigration police, are up 30 percent from 2016 to 2017, according to that organization’s internal statistics. Additionally, the arrest of undocumented immigrants who do not have criminal convictions is up 146 percent from 2016.
The message is clear. Arrest more immigrants, push them through the crowded immigration courts faster, and deport them quickly and unceremoniously. More resources are going toward arresting foreign nationals, but fewer resources toward immigration courts. Pushing more cases through an already backlogged court system is creating pressures that undoubtedly will erode immigrants’ due process rights.
Free and independent immigration courts are crucial to the administration of fair and equitable decisions for immigrants. The Fourteenth Amendment admonishes us not to “deny to any person within its jurisdiction the equal protection of the laws.” That means non-citizens who are present in the United States. They cannot vote, so we the citizens must advocate on their behalf.
This administration has pushed the independence of our institutions to its limits. Most of them so far have proven resilient. However, because immigration courts are housed entirely under the executive branch, it is becoming increasingly clear that immigration judges must be divorced from the attorney general if they are to continue to render fair and impartial decisions without being rushed, and without the threat of termination looming over the heads of immigration judges.
Michael J. Wildes, a Democratic former mayor of Englewood, will be on the ballot for that position in November. A former federal prosecutor, he is the managing partner of Wildes and Weinberg, PC, specializing in immigration law.