U.S. Immigration Courts Urged to Separate From Partisan DOJ

  • Justice Department oversees dozens of tribunals across U.S.
  • Judge cites ‘extreme pendulum swings’ from administrations

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A key congressional panel is considering sweeping changes to U.S. immigration courts that would remove the beleaguered system from the Justice Department.

Immigration lawyers and judges on Thursday urged the House Judiciary Subcommittee on Immigration and Citizenship to pursue legislation that would restructure the courts in a standalone system.

Chair Zoe Lofgren (D-Calif.) is working on a bill to make changes to the immigration courts. Her office declined to provide details, but Lofgren told witnesses and colleagues she didn’t believe the courts could function properly while part of DOJ.

“Decades of bureaucratic and political meddling by the governing administration have undermined and eroded public trust in the system,” she said, noting that the attorney general has authority to resolve pending immigration cases.

Photographer: John Moore/Getty Images
Parents-to-be from Haiti stand at a gap in the U.S.-Mexico border wall after having traveled from South America to the United States on Dec. 10, 2021 in Yuma, Ariz.

Witnesses told the panel the system faces frequent political pressure, with changing priorities under each new administration. The system is also plagued by staggering case backlogs, with immigrants often waiting three years for decisions on asylum claims and deportation.

Immigration Courts, Broadly Criticized, Get Congress Scrutiny

‘Extreme’ Swings

The Justice Department’s Executive Office for Immigration Review oversees the dozens of immigration courts and hundreds of judges across the country. Witnesses representing the Federal Bar Association, American Bar Association, and National Association of Immigration Judges endorsed the notion of moving the courts to a new, independent system.

“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,” National Association of Immigration Judges President Mimi Tsankov said.

Several Republicans on the panel used the hearing as an opportunity to criticize the Biden administration’s border policies amid record levels of migrant encounters over the past year. Rep. Tom Tiffany (R-Wis.) said it was a “myth” that moving the courts out of DOJ would resolve their issues.

Former immigration judge Andrew Arthur agreed, saying inadequate border security is responsible for large numbers of new cases and worsening backlogs. Restructuring the court system would be expensive and wouldn’t increase efficiency, said Arthur, now a fellow at the Center for Immigration Studies, which favors lower levels of immigration.

Immigration lawyers Karen Grisez and Elizabeth Stevens, testifying on behalf of the ABA and FBA, respectively, countered that making the courts independent would eliminate time-consuming docket shuffling from political officials and reduce appeals.

The legal groups and the judges’ association recommend restructuring the courts under Article 1 of the Constitution. Article 1 courts specialize in discrete areas of law, including tax and bankruptcy, manage their own dockets, and rely on judges who serve for fixed terms.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Sarah Babbage at sbabbage@bgov.com

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