Congress Holds Hearing on Independent Immigration Court System (Happening Today)

Congress will hold a hearing today to discuss the possibility of creating an independent immigration court system. Here’s the historical and contemporary context you need to know to make sense of the hearing.

The history of the immigration court’s lack of independence goes back to (at least) the late 1940s when the Supreme Court took up the question of whether the Administrative Procedures Act (APA, passed in 1946) applied in deportation cases.

At the time, “Examining Officers” functioned as both prosecutors and adjudicators in deportation hearings, which were, shall we say, conducted far more casually than today. (Though I can feel the comments filling up with the first-hand accounts of immigration attorneys who are ready to describe how casual immigration hearings are still conducted today.)

In Wong Yang Sung v. McGrath, the government argued that Examining Officers should be exempt from the APA’s requirement of separating adjudicatory and prosecutory roles. The government lost the case, but it wasn’t until 1956 that a distinction between those two roles was (barely) instituted.

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In case you missed it, the Biden administration vigorously defended the legality of the Trump-era Title 42 pandemic policy yesterday, asking a federal appeals court to allow border officials to continue expelling migrants without screening them for asylum. Read Camilo Montoya-Galvez’s report on the case here.

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Here is a photo of an immigration hearing from roughly the 1960s in San Francisco taken from my dissertation work on the immigration courts. The judge is second from the right behind the desk. Notice the lack of robes and the lack of courtroom architecture. (You may recognize this as being the banner image for my academic website here, too.)

The situation evolved gradually until the 1970s when Special Inquiry Officers, who acted as adjudicators, were allowed to wear the robes of judges and hearings increasingly took place in courtroom-like settings.

In the 1980s, the Executive Office for Immigration Review (EOIR) was created as a separate agency within the Department of Justice. This was done in part to insulate the judges, who at that point metaphorically and literally shared offices with INS immigration prosecutors who were also under the Department of Justice.

Until the restructuring of immigration enforcement under the Department of Homeland Security in 2003, the Department of Justice was home to both INS prosecutors and immigration judges. In fact, forgive me for not being able to cite this, but I believe in the course of drafting the Homeland Security Act, the Bush administration seriously considered bringing the immigration courts over to DHS rather than leaving them in the DOJ.

Despite these slow historical movements over the past 80 years, the courts are not as independent as they may appear at first glance. Still today, the courts are operated by the Department of Justice, which is primarily a law enforcement agency, and the judges are classified and treated (from an administrative perspective) more like a special type of attorneys rather than true judges. The NAIJ website is replete with examples of this.

Practically speaking, this means that the immigration courts are far less insulated from political influence than other types of federal courts. We saw the most serious consequences of this during the Trump administration, but President Bush, President Obama, and President Biden have also meddled in how the courts function on a daily basis, too. Neither party has clean hands here.

What should be done?

The main proposal that has been debated over the years involves making the immigration courts an “Article 1” court. See, for instance, the NAIJ’s past president and recently retired Judge Dana Marks’ article in Bender’s Immigration Calling for an independent court in 2008.¹

Judge Marks’ article is available to download here. An excerpt from Judge Marks’ article describes the main thrust of what an Article 1 immigration court would look like.

The solution is an Article I Immigration Court. The structure would consist of a trial-level Immigration Court and an appellate-level Appellate Immigration Review Court. We strongly urge that following determinations by these tribunals, an aggrieved party would have resort to the regional federal circuit courts of appeal. This model is based on the United States Tax Court which also provides for initial adjudication in an Article I tribunal with limited jurisdiction followed by review in an Article III court of general jurisdiction, a regional circuit court of appeal. We propose that Immigration Judge appointments, terms of office, salary, retirement and discipline be patterned after the Tax Court provisions.

A similar statement published in February 2021 from the NAIJ is available to download here.

This background leads us to what is likely to be an interesting hearing today on an important yet very old question of whether the United States should have an immigration court system that is less prone to political influence and better conforms to the legal ideals that shape how most other courts in the US are organized institutionally. I hope you watch it, as I plan to do.

For the record, I’m not taking a position on these policy considerations and I’m choosing not to use this post to develop a critique of the courts or of these proposals. I just want to provide a kind of short background to the hearing today so that more people can make sense of the hearing and possibly even watch the hearings for the learning experience they will certainly provide.

The hearing is hosted by the House Committee on the Judiciary Subcommittee on Immigration and Citizenship. The hearing is titled For the Rule of Law, An Independent Immigration Court. The hearing will be live-streamed on YouTube below starting at 2:00 pm Eastern. (See link below.)

Witnesses include:

1. Andrew R. Arthur, Resident Fellow in Law and Policy, Center for Immigration Studies. Arthur is a former immigration judge. The Center for Immigration Studies is currently designated as a hate group by the Southern Poverty Law Center. More information about the SPLC’s designation is available here.

2. Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP, on behalf of the American Bar Association. The American Bar Association is the main professional organization for attorneys in the United States.

3. Elizabeth J. Stevens, Of Counsel, Poarch Thompson Law, on behalf of the Federal Bar Association. The Federal Bar Association is a professional organization made up of attorneys and judges who practice in federal court.

4. The Honorable Mimi E. Tsankov, President, National Association of Immigration Judges (NAIJ). The NAIJ is a bargaining unit that represents immigration judges who work in the immigration court system in the Executive Office for Immigration Review. Judge Tsankov will be speaking in her role as NAIJ president, but she is also an immigration judge in New York City and a professor at Fordham University.

Click below to bookmark the upcoming hearing and to watch it in real time on YouTube.

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1. Marks, D. L. (2008). An Urgent Priority: Why Congress Should Establish an Article I Immigration Court. Bender's Immigration Bulletin, 13, 3-8.