An Independent Immigration Court: A Solution in Search of a Problem

If you think that political pressures on IJs are a problem now, wait until they have to fight for money

By Andrew R. Arthur on January 27, 2022

I testified last week before the House Judiciary Committee’s Subcommittee on Immigration and Citizenship on whether Congress should create an independent immigration court. It was the third time that I offered testimony on the topic. While the 580-some immigration judges (IJs) in the nation’s 66 immigration courts need help, an independent immigration court is not the solution, or rather it is a solution in search of a problem. It would simply make the challenges facing the court worse.

Background on the Immigration Courts. By way of background, IJs are judges, but unlike judges of the federal district and circuit courts, they are not located within the judicial branch. Rather, 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 the authority for administering and executing the immigration laws (responsibilities that he shares with the secretary of State), but it 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 almost 1.6 million cases pending in the immigration courts, however, the AG has to delegate his authority, and the IJs and members of the Board of Immigration Appeals (BIA) are his delegates.

Problems Facing, and Concerns About, the Immigration Courts. As time has gone on, IJs have chafed under the EOIR system, and their concerns have been heightened by their increasingly large 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 swelled 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 sharpened 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-bar legal career began in EOIR, 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 a number of areas in which EOIR is lacking.

Further, I have concerns about attempts by the current AG, Merrick Garland, to “reimagine” asylum protection 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.

Issues Surrounding an Independent Immigration Court

Nonetheless, I still think an independent immigration court would violate the Constitution and would simply create more problems than it solves.

Insurmountable Constitutional Issues. The constitutional problems that would plague the creation of an independent immigration court are paramount and should be dispositive of the issue.

Note that foreign policy decisions are solely vested in the executive branch. 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.”

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.”

Specifically, and saliently, the Supreme Court explained there that:

A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.

Simply put, any immigration decision has foreign policy ramifications, because the way the United States treats the national of a foreign power will impact the way that country treats our citizens. Such “reciprocity” governs our intercourse with all other nations.

To put this into a real-world context, when I served as an associate general counsel at the INS, I oversaw (and sometimes argued) what were termed “national security cases” — those involving spies, terrorists, and persecutors.

Many of those terrorists posed no direct threat to the people of the United States or its institutions. Rather, they used the United States as a base of operations for terrorist activities abroad, or as a source of fund-raising for terrorist groups.

Most would argue that they weren’t really “terrorists” (few terrorists admit as much), or that they posed no terrorist threat to the United States per se. If an IJ or the BIA held that those alien respondents were not terrorists, the AG would, under the current system, be available to step in and make the call.

If the AG were to find that those aliens’ activities did not rise to the level of terrorism, it would have significant ramifications for our diplomatic efforts in the countries that were the targets of those aliens’ efforts, but at least it would be a cabinet-level officer answerable to the president making that call.

Under an independent immigration court system, all that the president and secretary of State could do is make excuses, despite the dire consequences that might follow.

Restructuring Would Be Unduly Costly and Complex

Constitutional concerns are far from my only ones, however.

Any restructuring of the immigration courts would be complex and costly, absorbing resources that would be better directed toward improving EOIR and providing it with more funding. Creating an independent immigration court out of the current EOIR structure would simply compound those costs and add to the complexity.

An Independent Immigration Court Would Have to Fight for Funding. Speaking of costs, the new independent immigration court would have to vie for resources with other federal departments and adjudicatory bodies. Under the EOIR structure, the immigration courts are largely protected from such budget battles. On its own, an independent immigration court would have to create a funding scheme, submit budget proposals, and justify those proposals.

Good luck obtaining money for the positions and resources required to whittle down a backlog of almost 1.6 million cases.

Political Pressures Associated with Funding an Independent Court. Many proponents of an independent immigration court contend that it would remove the political pressures under which IJs now labor — and there is much bad that can be said about those pressures.

Imagine, however, how great those pressures would be if — in the next budgeting cycle — IJs had to go back to Congress and ask for more money. If judges granted relief in a way that perturbed conservatives, those 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.

If you don’t believe that would happen, simply look at the ways in which Congress has limited ICE detention funding. Many Democrats do not agree with detaining aliens (and many don’t like ICE, period), and have starved the agency for detention beds.

No Way to Allow IJs to Pay Their Own Way. The only way that an independent immigration court could avoid such pitfalls is if the drafters of the legislation allowed the courts to fund adjudications through fees paid by the parties. ICE represents the federal government in immigration court, and I assume that the agency could be required to pay some cash (although different appropriators would fund the agency and the courts), but this would also require charging respondents for their own removal hearings.

I am not sure how Congress could do that, but even if it only charged aliens seeking relief or protection, issues would abound.

At the end of FY 2021, of the nearly 1.4 million cases that were pending before the courts, more than 623,500 of them — 44.5 percent — involved asylum. Traditionally, asylum applicants don’t pay to have their cases adjudicated, but even if that were changed, the costs would be exorbitant.

IJs can make up to $181,500 per year and, in the best of circumstances, an asylum case can take about four hours. Assuming the average IJ works 2,000 hours a year (which is actually more than they work, given federal holidays and vacation and sick leave), that means that an IJ can hear about 500 asylum cases per year.

Just counting IJ pay (not including rent, infrastructure, technology costs, staff salaries, etc.) means that the average asylum adjudication would cost $363 — not counting preparation time or the expenses associated with continuances. Taking all expenses into account, the total would be at least $2,000 per case, shutting most applicants out of relief.

An Independent Court Would Slow — or Halt — IJ Hiring. Then, there is the issue of IJ hiring. As the figures above show, there are just too few IJs, and more are needed. The Senate confirmation process, however, is not a quick one, and again, political pressures would be imposed on new applicants.

And that is just the new applicants. What is Congress to do with the 580 IJs now on the bench? “Grandfather” them in, or confirm them on a rolling basis? Again, an IJ who knew that his or her confirmation was coming up would likely avoid issuing a politically unpopular but legally correct decision.

Depriving Congress of Oversight. Finally (and conversely), an independent immigration court would operate with little or no congressional oversight. If they are independent of the executive branch, they would be independent of the legislative branch, too.

“Bad apples” on the immigration court are few and far between, but that does not mean that they don’t exist, and Congress (which makes the rules as it applies to immigration) would have little recourse if the judiciary or members thereof went rogue, aside from depriving the courts of funding, which as explained would make the situation all the worse.

The Solution in Search of a Problem that Would Make the Problems Worse. In an ideal world, adjudicators would be able to operate free of any constraints. Panglosses aside, however, no one believes that this is such a world.

IJs, the BIA, and EOIR as a whole face a raft of issues. Most of those issues, though, are directly tied to the backlog, and the backlog is largely a function of the massive number of illegal migrants who are pouring over the Southwest border.

Unless and until this, or some future, administration takes concrete steps to deter illegal immigration at the Southwest border, IJs will be laboring under a crushing caseload. No such changes are coming in the foreseeable future, however, so in the interim, the immigration courts will have to handle the caseload.

Any independent immigration court proposal is simply a solution in search of a problem. That is not to say that there aren’t problems with the current system — there plainly are. It’s just that such proposals would make the current problems plaguing the immigration courts worse.