Ensuring the rule of law by creating independent immigration courts

From CGO Undergraduate Fellow Kallin Kelley

As part of the CGO fellowship, fellows research and write about issues in CGO’s core areas. Kallin dove into the immigration world with me and has been working on how we can reform immigration courts to insulate them from political pressure. Enjoy! - Josh

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Imagine that you are a Honduran parent of two children. You are plagued daily by poverty, natural disasters, violence, and threats from local gangs and cartels. You come to the conclusion that to keep your family safe, you can no longer stay in Honduras. You elect to take your family and embark on the 1,500-mile journey to the southern border of the United States. With no shortage of luck, you make it into the US and begin to establish a new life . . . 

Fast forward five years. You are pulled over for a routine traffic stop and find yourself facing deportation proceedings. Upon hiring an attorney, you apply for asylum, arguing that the persecution you faced in your home country should qualify you to remain indefinitely in the US. 

The attorney informs you that your district has a very low approval rate for asylum claims. The neighboring district, which is located 50 miles away, however, has a much higher approval rating. You have two options: You can permanently relocate your family to the neighboring district to pursue your asylum claim, or you may take a calculated risk and remain in your current district, believing you are the exception to the low approval rating.

Although the scenario presented above may appear extreme, in reality it is not uncommon among the nearly 1.6 million backlogged asylum cases currently waiting to be heard in immigration courts. Few of the applicants will ultimately receive asylum—only one out of three applicants were granted asylum during the fiscal years between 2017–2022. But this national average masks a lot of variation by judge and by court location. 

For example, there is a large difference in the approval rates between the districts of Hyattsville (Maryland) and Atlanta (Georgia). Each court is composed of a single judge, and each judge sees a similar number of cases each year. Yet in Hyattsville, nearly 9 out of 10 asylum seekers were granted asylum—compared to not even 1 out of 10 in Atlanta. 

These inverted outcomes reflect the inverted system as a whole. The design of the United States immigration court system is largely to blame for the disparity. For too long it has been victim to changing political priorities and agendas that hinder its ability to provide consistent and fair outcomes. No court system should be subject to political pressures. Immigration courts must be revamped to offer fair and equitable outcomes to individuals and families whose lives are (often literally) at stake. Immigration courts should decide cases based on their merits under the law, not according to the political preferences of the current presidential administration.

How the current immigration court system works

Immigration courts have been largely untouched since their creation in 1983. In that year, the Executive Office for Immigration Review (EOIR) was created and given oversight over immigration courts and related proceedings. The EOIR is an agency housed under the Department of Justice, whose head is the attorney general of the United States.

The immigration court system is tasked with conducting removal proceedings and adjudicating asylum claims for immigrants. To accomplish this, 68 courts have been established, with approximately 600 judges serving across those jurisdictions. According to data compiled by researchers at Syracuse University, judges will adjudicate an average of about 394 cases each year. In contrast, the typical active federal judge in 2017 oversaw about 250 cases. In addition to the courts established, there also exists an appellate body named the Board of Immigration Appeals (BIA). If a decision against the immigrant is made, they may appeal the decision to the BIA in hopes of their claim being granted. The BIA, however, typically “decides appeals through paper reviews rather than in courtroom proceedings.”

Immigration courts are civil courts. Due to this, immigrants are allowed to hire their own counsel, but are not provided one by the government as they would be in criminal proceedings. According to the American Immigration Council, in 2016 only 37 percent of immigrants were able to secure legal representation in their deportation proceedings. However, in asylum cases from 2001 through the most recent data in March 2023, about 81 percent of asylum requesters had legal representation.

Immigration courts face a huge backlog of cases

Although the design of the immigration court system hasn’t changed much, the landscape of immigration in the US has changed dramatically. In 2022, the United States saw a whopping 2.76 million migrant border crossings, which breaks the previous record by over 1 million migrants. 

The backlog of asylum cases means that the wait time to ultimately receive a decision is extremely long. For the 1.6 million people waiting for their asylum decision, the average wait time is over five years. Much can change in the course of five years. The political landscape in which an asylum seeker might apply for asylum today will undoubtedly be very different from the one in which they will finally receive a decision.

Immigration courts aren’t independent from political whims

The primary weakness in the immigration court system is its lack of independence from the executive branch. Because it is part of the Department of Justice and answers to the attorney general and president, the EOIR has been subject to the changing priorities and political agendas of various administrations. Since 1983, a see-saw effect has been exhibited in the courts as different political parties have held control of the executive branch. 

Courts jump between different interpretations based on the direction of the person in charge of the executive branch, not based on considerations of the rule of law. Think about it like a referee at a sports game. If the home team got to select referees based on how they wanted the game to be called, that would be unfair to their opponents. The home team could use the referees to get an unjustified advantage. 

This is what our immigration courts are like. Different adjudication methods have been practiced based on the current president’s priorities. This makes it impossible for the courts to establish consistent and shared precedents. 

The American Immigration Lawyers Association (AILA), an association of over 16,000 practicing immigration attorneys and immigration law professors, argues that this structure renders immigration courts “vulnerable to improper influence and political pressure.” This political influence, they argue, “has undermined the courts’ credibility, integrity, and ability to render fair decisions.” Courts should be designed to be independent and “immune from the political agendas of other government operatives.” As long as immigration courts are housed under the DOJ, they will never be effective adjudicators of fair and equitable immigration law.

In addition, the appointment of immigration judges is flawed. Immigration judges are not wholly independent from the attorney general’s demands, unlike other federal judges. They are instead considered government attorneys and “hired and can be fired like other federal employees.” In this matter, AILA has stated that this method of appointment “fails to recognize the importance of [judges’] judicial duties and leaves them particularly vulnerable to political pressure and interference.” Additionally,  immigration judges “are not guaranteed tenure or many of the other protections that insulate judges from outside influence.” 

Because of the system's establishment and judges' status, they have no requirements or expectations set before them on which they can base their adjudication methods. Such an establishment fails to produce consistently fair outcomes.

How to repair the immigration court system

The immigration court system needs a complete overhaul. Immigration courts should be established under Article I of the Constitution—similar to the United States Tax Court, Court of Appeals for Veterans Claims, and Appeals for the Armed Forces. Similar to the United States Tax Court, Court of Appeals for Veterans Claims, and Appeals for the Armed Forces, immigration courts should be established under Article I of the Constitution. This would allow the Supreme Court of the United States to maintain oversight of immigration courts. Doing so would free immigration courts from the politically charged priorities or pressures of presidential administrations—administrations that, according to AILA, “have repeatedly made policy decisions, not because they’re efficient or legally sound, but because they’re politically expedient.” 

The entire structure of the United States government was established upon a principle of checks and balances. The way the system is currently established allows abuse of power to be exercised in the immigration courts. No opportunity, as such, has been available for immigration judges to establish strong precedence regarding asylum claims and removal hearings. The president of the National Association of Immigration Judges, Mimi Tsankov, noted that a structure which provided independence to immigration judges would make immigration hearings “fairer and more efficient, free from the political pressures that currently permeate the immigration adjudication system.”

In addition to reestablishing immigration courts as Article I courts, qualified and fair judges must be appointed to hear asylum claims and oversee removal proceedings. AILA believes that judges must have “greater protection from undue influence,” and that a new system would “carry greater prestige and likely attract more highly qualified individuals.” These two factors would greatly strengthen the “reputation and integrity of the system.” By attracting these qualified judges and shielding them from political interference, more fair and equitable outcomes can be achieved.

Two promising reform proposals 

Luckily, members of Congress, both Democrats and Republicans, have proposed promising reforms to immigration courts. In February of 2022, representative Zoe Lofgren introduced a bill titled “The Real Courts, Rule of Law Act of 2022,” which was placed on the Union Calendar in December of 2022 and currently awaits review. The bill provides a complete overhaul of the immigration courts, and establishes “under Article I of the Constitution of the United States, a system of courts of record to be known as the United States Immigration Courts.” 

The bill emphasizes that the new court system is “not an agency of, and shall be independent of, the executive branch of the government.” It stipulates that the courts would also consist of both trial and appellate divisions to ensure the most fair outcomes possible. The appellate courts would consist of 21 judges, each serving 15-year terms, appointed by the president and approved by the Senate. In turn, the 21 appellate judges would appoint trial judges (as needed) to serve 15-year terms as well. 

This proposed bill would alleviate many of the pain points now rampant in the current court system. First and foremost, it insulates the courts from political pressure by making them independent. Instead of being subject to the attorney general, which is a political appointment, immigration court judges would be selected based on their qualifications. This would bring the immigration court system in line with the practices of other courts—such as the US tax courts. 

From the Republicans, the Dignity Act, spearheaded by Florida’s Representative Maria Salazar, would support additional hiring for immigration judges and asylum officers. In addition, it adds steeper penalties for asylum fraud that are meant to deter weaker and unsubstantiated claims. 

There is great need for additional immigration judges and legal support staff in the asylum system. The shortage contributes to burnout of judges and risks violating the rule of law. Because there are so many hearings, applicants may not be receiving their due attention as judges rush to complete caseloads. As the Bipartisan Policy Center wrote in testimony submitted in 2022 to the House Judiciary Subcommittee on Immigration and Citizenship, “Overwhelming schedules can reduce hearing times to as little as seven minutes.”

Reforms that bring more muscle to the immigration court system and make it more like other courts are a step in the right direction. They will bring clarity and prevent the kinds of disparities seen in the current immigration system in which the outcome of an asylum case is determined primarily by its venue. 

Immigration courts can—and must—be fixed

The United States’ history as a country of refuge means that many outside of the country see it as a land of opportunity and safety. Unfortunately, our immigration court system has been unable to adjudicate cases without politicians putting their thumbs on the scales. As the National Immigration Forum argued, “We need an independent immigration court system so that life-altering legal cases can be decided by judges, not politics.” 

The US immigration system faces pressures from a growing backlog and the last few years have seen record numbers of border crossers. We can’t afford to put off reform, or as AILA put it, “Band-aid fixes and short-term solutions are no longer enough to reverse course.” 

People’s lives are at stake. Immigrant parents sacrifice life and limb in order to protect their children and loved ones. To be able to achieve the rule of law in immigration cases, Congress needs to set immigration courts up as independent courts. A family’s fate should not rest on the district that they happen to live in, but the merits of their claims under immigration law.