House Judiciary Committee to Mark Up ‘Independent’ Immigration Court Bill

Only makes the real problems facing the immigration courts even worse

By Andrew R. Arthur on April 6, 2022

On April 5, the House Committee on the Judiciary will mark up H.R. 6577, the “Real Courts, Rule of Law Act of 2022”. The purpose of the bill is to set up an “independent” immigration court system separate from the executive branch under Article I of the U.S. Constitution. Such a court is a bad idea (not to mention unconstitutional), but the text of that bill — to say nothing of its timing and the process under which it is being considered — makes that bad idea even worse.

Background on the Immigration Courts. By way of background, there are two administrative bodies that currently do the work that H.R. 6577 proposes shifting over to the new Article I tribunals.

The first are the immigration courts under the Office of the Chief Immigration Judge (OCIJ) in DOJ’s Executive Office for Immigration Review (EOIR). There are 66 such courts throughout the United States, which are currently staffed by just fewer than 600 immigration judges (IJs).

IJs are judges, but unlike judges in the federal district and circuit courts, they are not located within the judicial branch. Rather, as their placement in DOJ suggests, they are attorneys appointed by the attorney general (AG) to conduct certain immigration hearings, including removal proceedings under section 240 of the Immigration and Nationality Act (INA).

Why does the AG need IJs? Section 103 of the INA largely vests the secretary of Homeland Security with authority for administering and executing the immigration laws (responsibilities that he shares with the secretary of State), but that statute makes clear that, when it comes to questions of law, the AG is in charge.

That means that, legally, the AG is responsible for determining who should be admitted, who should be removed, and which aliens should be granted protection and relief from removal. Given the fact that there are more than 1.7 million cases pending in the immigration courts, however, the AG must delegate his authority to the IJs in the immigration courts.

The second tribunal is the Board of Immigration Appeals (BIA). Currently, alien respondents in removal proceedings have the right to seek BIA review on appeal of all IJ decisions, as well as certain other decisions issued by DHS adjudicators.

As with the IJs, the BIA utilizes powers granted to the AG to issue legal decisions. And, as with the immigration courts, BIA members are appointed by the AG.

H.R. 6577. The bill proposes to replace the immigration courts and BIA in EOIR with two new Article I tribunals — independent of the executive branch — that would have more or less the same authorities as IJs and BIA members currently exercise.

Both would be subsumed by the new “United States Immigration Courts”, which would consist of “immigration trial judges” (in lieu of IJs), and an “Appellate Division”, which would consist of a chief judge and 20 other “immigration appeals judges” taking the place of the BIA. Both immigration trial judges and immigration appeals judges would be appointed for 15-year terms and would be eligible for reappointment to a second 15-year term.

Challenges Facing the Current Immigration Courts. EOIR has existed in its current form since 1983 (prior to that it was a component of the former Immigration and Naturalization Service (INS) and its predecessor agencies), but of late IJs have chafed under the EOIR system, and their concerns have been heightened by their increasingly swollen dockets.

In FY 2010, when there were 245 IJs, there were just short of 262,800 pending cases, or 1,073 cases per judge. By the end of FY 2021, there were 559 IJs, but their dockets had ballooned to 1.4 million (and have increased since) — more than 2,500 pending cases per IJ.

The then-EOIR director attempted to set case completion goals for IJs in October 2018, which prompted the IJs’ union to complain about interference in their decision-making. More specifically, the head of the union asserted that such performance metrics were intended “to incentivize judges to issue more orders of deportation, faster, at the risk of losing their jobs”.

An interim rule that allowed the director to decide cases pending before the BIA simply intensified their complaints, and various parties complained about the increasing use of AG “certification” under the Trump administration. Briefly, certification allows the AG to create and shape policy by issuing decisions in individual cases that are binding on IJs and the BIA.

These complaints grew louder as DOJ under the Trump administration attempted to decertify the IJs’ union, a decision that has been reversed under President Biden.

My post-graduation legal career began in EOIR (I was hired there nearly 30 years ago), and all told I served more than 10 years within that component. Although I had the full support of my supervisors and staff, I understand there are several areas in which EOIR is lacking.

Further, I have concerns about attempts by the current AG, Merrick Garland, to “reimagine” asylum by broadening the definitions for that protection. And should I ever become an IJ again, I would certainly want to have unfettered discretion to rearrange my docket and to work under as few administrative strictures as possible.

Problems with an Article I Immigration Court. That said, an independent immigration court even under the best of circumstances is not the answer.

Proposals for an independent immigration court like the one in H.R. 6577 are not new, but to the best of my knowledge, this is the first legislative attempt to bring such a court to fruition.

In fact, I have testified about the issues with such a court three times in the recent past: Once before the Senate Judiciary Committee in April 2018, and twice before the House Judiciary Committee, in January 2020 and again in January 2022.

As I explained in a January post, however, there are numerous problems with such a proposal.

The first and foremost is that such a proposal is unconstitutional because all immigration decisions have foreign policy implications. Put plainly, the way we treat each nation’s nationals is directly tied to how they will treat U.S. citizens, and any immigration determination is an expression of U.S. foreign policy.

And as the Supreme Court explained more than 80 years ago: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” H.R. 6577 would divest the executive of almost all immigration decision-making authority.

In that vein, and more recently, the Court has “recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations’.”

Respectfully, those constitutional concerns should be the end of any discussion of an Article I immigration court. Congress is certainly on notice about this because each time I testified on the subject, I put those constitutional concerns front and center. But as this bill (and this mark-up) reveals, however, my plaints fell on deaf ears.

Then there is the fact that creating an independent immigration court would be unduly costly and complex. Want proof?

This bill runs 66 pages, and although I was a staff director for the House Oversight Committee (which has jurisdiction over compensation within the federal civil service), I have no idea how much the proposed judges would be paid (although it appears to be a lot), or how much they would receive when they retire (although the retirement benefits appear to be quite lavish, as well).

In addition, an independent immigration court would have to vie for resources from Congress. That is not so difficult for EOIR (which is covered by the DOJ budget), but it is not only foreseeable but likely, that a future Congress that does not like the decisions issued by Article I immigration trial and appeals judges will deny the court resources.

As I explained in my earlier post:

If judges granted relief in a way that perturbed conservatives, those [congressional] representatives would have the “power of the purse” to constrain or direct funding in a way that expressed their displeasure.

Liberals seeking an amnesty of the 11 million-plus aliens in the United States, on the other hand, could all but ensure that most of them were able to remain in this country by simply starving the independent immigration court of money. Most removals require an order of removal issued by an IJ or the BIA, and thus those on the left could limit removals by withholding funding.

The Rube Goldberg system in H.R. 6577 would also slow the hiring of new judges, a problem that would be compounded by the Senate confirmation process.

And Congress would have no oversight power (aside from budgetary threats) over the proposed tribunal.

Specific Problems with H.R. 6577. Those are all general issues that would apply to any independent immigration court. H.R. 6577 compounds them with specific problems of its own.

I alluded above to the complexity of the hiring process for judges therein, but that only scratches the surface.

Proposed section 602(a) of the INA, which sets forth the qualifications for judges, is largely composed of vague and undefined terms, rendering it ripe for activist abuse. For example, it states that any “immigration judge shall — possess and have demonstrated a commitment to equal justice under the law”.

What exactly does “equal justice under the law” mean in this context, and how does one “demonstrate a commitment to” that lofty principle? Every lawyer — I would hope — believes all litigants should be treated equally, but does this mean that judicial candidates can be excluded from the bench if they have represented clients who themselves do not “demonstrate a commitment to equal justice”?

John Adams set the bar (as it were) for U.S. lawyers when he represented nine British soldiers involved in the “Boston Massacre” of March 1770. As he famously remarked in his closing argument: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

One could argue that those soldiers were ambivalent (at best) about “equal justice”, but would that restrict Adams’ ability to adjudicate asylum cases as an impartial arbiter?

The bill also requires that would-be judges “possess and have demonstrated outstanding legal ability and competence, as evidenced by ... aptitude for legal scholarship and writing”. I graduated virtually smack-dab in the middle of my law school class, but if I had been at the bottom, would I be barred from hearing removal cases?

Then, there is the requirement that immigration judge applicants “be qualified to conduct fair and impartial hearings that are consistent with due process”. Where would one go to obtain such qualifications, aside from the bench? And if an ICE attorney were a zealous advocate for the government, would that preclude consideration of his or her application?

In that vein, the bill also contains a requirement that the immigration judge corps “to the extent practicable, reflects a balance of individuals with prior legal experience in the public sector and private sector”.

A “balance” means that half are on one side, and half are on the other. Many private immigration practitioners make much (much) more than I did as an INS attorney, congressional staffer, or even IJ, and therefore would have no interest in taking the pay cut that a black robe entails.

An IJ position, however, represents a natural progression for a lawyer who has dedicated an entire career to (often thankless) government service. Notably, as President George H.W. Bush explained: “Public service is a noble calling.”

Plainly the drafters of this bill would disagree with the 41st president because they render a lifetime of public service with ICE a disability when it comes to choosing judges.

By the way, there is no “veterans’ preference” in this bill to facilitate the appointment to the bench of those lawyers who have served in uniform (although notably there is one for non-judicial employees and “chambers staff”). Few if any currently serving JAGs need apply, and so much for the “thanks of a grateful nation”.

Most bizarre is the following, however: “No individual may be appointed as an immigration trial judge if such individual is related by blood in the first-, second-, or third-degree, or by marriage to a[n] immigration appeals judge in regular active service.”

There are plenty of judges in the United States who are married to other judges, and at least at one time, one married couple and two brothers (first-degree relatives) who were IJs. If my wife were a lawyer (she’s not), and I were still an IJ, why should she be barred from taking the bench simply because her husband was there, too (especially if she were a modern-day Oliver Wendell Holmes, Jr. and I was more of an Oliver Hardy)?

I won’t even get into the restrictions on first cousins (third-degree relatives) sharing the bench, except to note that I rarely see most of mine, we have no shared financial interests, and have little in common except blood.

Then, there are provisions that prompt one to wonder whether the drafters have ever been to an immigration court.

Proposed section 621(e) of the INA, as amended by H.R. 6577, would mandate that “Opinions and orders ... shall, to the greatest extent practicable, be issued in the form of a written opinion.” IJs can decide more than 20 cases on the merits per week, and consequently, nearly all merits decisions are delivered orally (in the 15,000-plus cases I decided, I probably issued fewer than 100 written decisions).

The transcripts of those oral decisions can run upwards of 50 pages, including a summary of the testimony and an analysis of the law. How in the world could any judge issue 20 written decisions of even 20 pages each in a single week? That is a sure-fire recipe to burn out judges and boost appeals.

And although this provision states “to the greatest extent practicable”, what are the odds that a judge who issues a couple of hundred written decisions in 15 years is going to be reappointed to another 15-year term?

The bill also bars merits hearings involving video teleconferencing (VTC), except where “the alien consents to its use”.

As an IJ, I had jurisdiction over in-person hearings in my own court at the York (Pennsylvania) County Jail, as well as hearings in two other county jails, one family detention center, most of the 23 prisons in the Pennsylvania state system, and two federal correctional institutions.

Pennsylvania is a big state, and the state and federal governments in Pennsylvania do not transport incarcerated prisoners to immigration courts. Few of those prisoners would waive in-person hearings, meaning that the ICE attorney, my clerk, my interpreter, and I would spend most of our time on the road.

VTC is not always perfect, but it works and satisfies due process. There is no reason for such a rule.

Timing. These are just a few of the problematic provisions in H.R. 6577. As I stated in that January post, an independent immigration court is “a solution in search of a problem”. Not only does this bill make the real problems in the EOIR system worse, but this proposal could not have come at a worse time.

The immigration courts are just starting to dig themselves out of Covid-19 pandemic closures, just in time to deal with the largest surge of illegal migrants at the Southwest border in history.

The backlogs will only get worse if (as DHS fears) 18,000 new illegal migrants are apprehended per day at the Southwest border after pandemic-related expulsion orders issued by the CDC under Title 42 of the U.S. Code expire on May 23. If even 10 percent of those aliens are placed on immigration court dockets, those dockets will grow by one-third in just a year.

Alien respondents must now wait on average 875 days (nearly 2.4 years) for their next immigration court date. How much worse will that become when IJs’ dockets are groaning under the weight of some 2.4 million cases?

H.R. 6577 would not simply “revamp” the immigration court system. It would tear that system down and rebuild it from (excessively bureaucratic) scratch. Implementing this proposal now would be like rearranging, redecorating, and adding new bathrooms to a house that is on fire.

Any legislative proposal to overhaul the nation’s immigration courts should focus on improving the speed, efficiency, and fairness — both to alien respondents and to the American people — of immigration adjudications. Nothing in this bill will make our system of justice better; rather, overall, it will make an increasingly dire immigration situation even worse.