WASHINGTON — The merits of overhauling the U.S. immigration courts into an independent system, removed from the jurisdiction of the Department of Justice, divided lawmakers and witnesses at a virtual hearing on Thursday.
“Our country deserves an immigration court system that works,” said Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee. “To be truly effective, immigration courts should function just like any other judicial institution, where judges serve as independent neutral adjudicators free from political pressure.”
Unlike in Article I courts, immigration judges often struggle with the decision to defer to their judicial responsibilities or to avoid political scrutiny, explained Judge Mimi Tsankov, one of the witnesses from Thursday’s trial.
“Amid those political swings, I may be staring down a possible poor performance rating, not because I don’t know how to do my job, but because the agency I work for has shifted its priorities,” Tsankov said.
The immigration court system cannot be effective when ultimately at the discretion of the Attorney General, who is nominated by the president, said Rep. Zoe Lofgren, chair of the Subcommittee on Immigration and Citizenship.
An Article I court, which has been empirically used in the past by the federal government for public issues like taxes and federal claims, would have appellate judges appointed by the president who then can appoint jurists not tied to the political priorities of the DOJ.
“The broad perception exists that the immigration courts narrowly rubber stamp DHS actions,” said witness Elizabeth Stevens, an immigration attorney and representative from the Federal Bar Association.
An Article I immigration court would afford judges more flexibility and control over their case dockets, according to Lofgren.
The push and pull of politicized immigration courts becomes clear as new motions to consider cases several times over start to pile on and expand an already overwhelming backlog, according to Stevens.
“Because of this perception, individuals may not pursue relief for which they might be eligible,” Stevens said. “It also leads to more petitions for review in the circuit courts, as the hope of impartial review in the federal court system postpones finality and undermines the authority of immigrations terminations.”
But the court’s backlog and administrative issues are also exacerbated by the influx of migrants from the southern border, said Rep. Tom Tiffany (R-Wis.).
An independent court under Article I could not solve the ever increasing number of cases, according to Judge Andrew Arthur, a witness at Thursday’s hearing and a former immigration judge.
“Any restructuring would be complex and costly, absorbing resources that would be better directed toward improving [the Executive Office of Immigration Review] and providing it with more funding,” Arthur said.
Tiffany stressed during the hearing that similar conversations on immigration court reform had been taken up by the committee two years prior to little avail. The Wisconsin representative called on the subcommittee to sit down with Homeland Security Secretary Alejandro Mayorkas and discuss how to move forward on resolving the border crisis.
“This myth that we have that you will achieve independence of a court by moving it to a place where it’s not under elected officials, it’s just that — a myth,” said Tiffany.
