There can be no immigration reform without fixing the broken immigration court system
Ultimately, the goal for immigration rights advocates is the creation of an Article I independent court system that doesn’t fall short on the promise of fair and impartial adjudication.
It’s often been said that the judicial processes in the United States are broken. In no judicial process is that more true than within the country’s immigration courts.
Recently, The New York Times editorial board published an op-ed based on the notion of truly restoring humane values to the immigration system as it stands, and tackled President Joe Biden’s moves thus far on the road to reform.
But this cannot be done without first tackling the immigration court system, which isn’t really a true court system — for many reasons.
The NYT Editorial Board endorses moving immigration courts out of the Department of Justice, thereby making them independent. The DOJ is the same law enforcement agency charged with prosecuting criminal immigration cases in federal courts.
It’s a perfect recipe for bias.
It’s also a move several immigrants' rights organizations and politicians like Julián Castro have been advocating for years.
In 2020, the American Immigration Lawyers Association declared American needs an independent, Article I immigration court to process migrants’ needs free from political immigration.
“For years we have seen the detrimental effects of a politicized immigration court system. Administrations have repeatedly made policy decisions not because they’re efficient or legally sound, but because they’re politically expedient,” the AILA wrote in April 2021.
For years, and over the course of a few administrations, the immigration court system has remained the same, with the same flaws in bias and justice intact.
Backlogs in the court system have immigration judges unable to adequately accommodate for a list that has more than doubled since the beginning of former President Donald Trump’s administration.
That backlog reached 1.3 million cases in January 2021, exacerbated in part by the reopening of hundreds of thousands of low-level immigration cases under the Trump administration, during which it also pushed to provide immigration courts with fewer resources to handle the increased volume of cases. The Trump administration even pushed to cut the use of immigration court interpreters, a move that would never be considered in regular court.
Many migrants waiting their turn get caught up in a case of “court limbo,” and are forced to wait for years before they are allowed an initial hearing. For people in detention centers, this is the difference between waiting a handful of days or weeks to several months or years.
None have the right to a lawyer — only at their own expense.
The immigration court system was broken long before the Trump administration, but it was under his administration especially, that flaws enabled it to be transformed into an extension of the DOJ’s enforcement agency rather than an institution designed to give one a fair day in court.
Trump hired an army of new immigration judges to preside over the immigration process as an extension of his immigration agenda. Essentially, they turned into what the NYT Editorial Board called a “conveyor belt of deportation.”
But as events have played out in recent months, the Biden administration has performed minimally better in his own selection of immigration judges.
Biden selected 17 new immigration judges for the DOJ who altogether have no professional experience aside from being prosecutors, immigration officials, or military personnel. Of those, 13 were selected by Biden administration officials and the remaining four were retained from the Trump administration.
While one of Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a title role in Trump’s mass-deportation initiative, the list of immigration judges selected by the Biden administration is disappointing in the aftermath of what migrants were forced to endure for years.
It points to a lacking knowledge or willingness to move towards true reform because the only way to truly reform the immigration court system is to either do away with it or rebuild it from within.
“The makeup of the list is particularly disappointing because one of the easiest ways for the Biden administration to bring about immigration reform is to reform immigration courts,” writes the Brennan Center for Justice.
Recently, a group of 48 House Democrats led by Rep. Norma Torres called on leaders in the Appropriations Committee to assign $75 million in funding to pay for legal representation for immigrants facing potential removal proceedings in immigration court.
This would fix the glaring issue that immigrants do not currently have a right to an attorney — just one of the contributing factors to the courts system.
Next, the overwhelming backlog must be fixed, and this can only be done through more investment in the system through staffing, and resources to process requests in an adequate time frame.
Ultimately, the goal for immigration rights advocates is the creation of an Article I independent court system — like the U.S. Tax Court or the U.S. Court of Federal Claims — that doesn’t fall short on the promise of fair and impartial adjudication.