The immigration courts of the United States are a branch of the United States Department of Justice known as the Executive Office for Immigration Review (EOIR). They are administrative tribunals devoted to hearing immigration matters, mainly deportations. The United States maintains fifty-nine immigration courts spread over twenty-seven states of the United States, Puerto Rico, and the Northern Mariana Islands, staffed by a total of 263 sitting judges.
The Attorney General of the United States is the head of the EOIR and appoints immigration judges to the courts. As I have written in previous articles, this method of judicial appointment has always appeared to me to create a conflict of interest. If the Attorney General appoints the immigration judges, can these judges be fair and impartial to asylum seekers when they owe their job to the Attorney General? In many cases, I believe the answer is no; they cannot divorce the political pressure they face from the Attorney General from the outcome of their asylum cases.
The immigration judges are appointed by and serve at the pleasure of the Attorney General of the United States, the country’s chief law enforcement officer. There is no set term limit on the appointment of the immigration judges. In order to avoid disappointing their boss, the Attorney General, judges may intentionally avoid providing “too many” grants of asylum. Furthermore, because asylum grants are discretionary relief under the Immigration and Nationality Act (INA), a form of relief that grants immigration judges unlimited discretion in deciding asylum cases, only the Board of Immigration Appeals (BIA) and the relevant federal circuit have jurisdiction to review.
I believe that our immigration court system should become Article I Courts like the U.S. Bankruptcy Court and the U.S. Tax Court. This would make the immigration courts independent of the Department of Justice and immune from possible political pressure from the Attorney General. In a 1997 speech Immigration Judge Dana Leigh Marks, past president of the National Association of Immigration Judges, advocated for making immigration courts an Article I Court. She stated, in relevant part:
Experience teaches that the review function [of the court] works best when it is well-insulated from the initial adjudicatory function and when it is conducted by decision makers entrusted with the highest degree of independence. Not only is independence in decision making the hallmark of meaningful and effective review, it is also critical to the reality and the perception of fair and impartial review.
Immigration courts, as they are now situated as part of the EOIR do not provide the kind of judicial independence that is critical to the perception and reality of the fair and impartial review Judge Marks describes.
I will examine herein a few of the proposals put forth over the last thirty-five years to transform the immigration court system into an Article I Legislative Court.
Perhaps, someday soon, Congress will revisit this issue of reforming the immigration court system by making it into an Article I court.
The History of the Immigration Courts
Our immigration courts are the “trial level” administrative bodies responsible for conducting removal (deportation) hearings-that is, hearings to determine whether noncitizens may remain in the United States. For asylum seekers with attorneys, such hearings are conducted like other court hearings, with direct and cross-examination of the asylum seeker, testimony from supporting witnesses where available, and opening and closing statements by both the government and the respondent. Approximately one-third of asylum seekers in immigration court are not represented by counsel. Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence apply in immigration court.
Prior to 1956, “special inquiry officers,” who were the predecessors to immigration judges, held hearings only as part of a range of immigration duties that included adjudicating deportation proceedings. These officers were retitled “immigration judges” (IJ’s) in 1973. Until 1983, immigration courts were part of the Immigration and Naturalization Service (INS), which was also responsible for enforcement of immigration laws and housed the INS trial attorneys who opposed asylum claims in court. In January of 1983, the Executive Office for Immigration Review (EOIR) was created, placing the immigration courts in a separate agency within the U.S. Department of Justice. In 2003, when the old INS was abolished and the Department of Homeland Security was created, the trial attorneys became part of the new agency, but the immigration courts remained in the Department of Justice.
Asylum cases are assigned to immigration courts according to the asylum seekers’ geographic residence. The administrators in each immigration court randomly assign cases to immigration judges to distribute the workload evenly among them and without regard to the merits of the case or the strength of defenses to removal that may be asserted by the respondents.
Appointment of Immigration Judges and Qualifications
Immigration judges are attorneys appointed under Schedule A of the excepted service who are managed by EOIR. Schedule A is a civil service designation for an appointed career employee as provided in the Code of Federal Regulations. Three processes eb5 projects have been used to hire immigration judges: (1) the Attorney General directly appoints the immigration judge, or directs the appointment without a recommendation by EOIR; (2) the immigration judge is appointed after directly responding to an announcement for an immigration judge and submitting the appropriate documentation; or (3) EOIR identifies a need and vacancies are filled from EOIR personnel or sitting immigration judges who requested and obtained the vacancy. Except for direct appointment by the Attorney General, to be considered for the position of immigration judge, an applicant must meet certain minimal qualifications.
The applicant must have a law degree; be duly licensed and authorized to practice law as an attorney under the laws of a state, territory, or the District of Columbia; be a United States citizen and have a minimum of seven years relevant post-bar admission legal experience at the time the application is submitted, with one year experience at the GS-15 level in the federal service. According to EOIR, the DOJ looks for experience in at least three of the following areas: substantial litigation experience, preferably in a high volume context; knowledge of immigration laws and procedure; experience handling complex legal issues; experience conducting administrative hearings; or knowledge of judicial practices and procedures.
ARTICLE I COURT PROPOSALS AND BILLS
Over the last thirty-five years there have been a number of suggestions as to how to remedy the shortcomings of the immigration courts as they are now constituted. The first suggestion judges, scholars, and practitioners have made is to take the immigration courts out of the Department of Justice and make them an independent court. The immigration courts, situated as they are within the Executive Branch, seem to present a blatant conflict of interest. The EOIR is part of a law enforcement agency that oversees the adjudication of cases of possible immigration law breakers. It is difficult to avoid the perception that immigration judges can be partial. Because immigration judges are chosen by the Attorney General, and serve at his or her pleasure, they do not have the independence to truly see that due process and meaningful justice are served.