The Innovation Law Lab and the Southern Poverty Law Center (SPLC) have jointly issued a report this month entitled, "The Attorney General's Judges: How the U.S. Immigration Courts Became A Deportation Tool".
As an aside, it's amazing to me that any organization still chooses to align itself with the scandal-ridden SPLC given recent revelations, not to mention its past history of overstepping the boundaries of both fact and decency in its paranoiac description of any entity that chooses to disagree philosophically with its positions as a "hate group" (see here and here). Disclosure: My organization is one of those that has been so labeled, and has reacted by filing a racketeering lawsuit against the SPLC that is still working its way through the courts.
The report is, perhaps not unexpectedly, long on polemics and short on history. Its central conclusion is that the U.S. immigration courts, which operate under the Executive Office of Immigration Review (EOIR) within the Department of Justice (DOJ), suffer under the weight of the attorney general's oppression, and therefore ought to be recast as Article I courts. (An Article I tribunal is a court created by congressional statute, as opposed to the judiciary established as a separate branch of government under Article III of the Constitution; examples include the U.S. Tax Court, military courts, and others.)
In some ways this report is simply an echo of a report produced under the auspices of the American Bar Association earlier in the year: "Reforming The Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases".
Technically, the product of the ABA is an "update" of a report that was first issued in 2010, after which there were eight years of silence. Note the timing, there: eight years of silence, mostly during the Obama administration. Apparently the need for an Article I immigration court wasn't quite so pressing as long as the presiding administration was philosophically aligned with the ABA which is, after all, a body of lawyers, the overwhelming majority of whom are in private practice pursuing agendas that don't necessarily match up with those of an administration more attuned toward strong enforcement of the immigration laws than its predecessor.
Note also that the lion's share of the work on the ABA report was farmed out to a "commission", which then handed it to, as the "Acknowledgements" make clear, Arnold & Porter, a high-power Washington law firm described by Wikipedia as a "white shoe international law firm ... one of the largest ... in the world according to both revenue and headcount". One can hardly consider them as having no skin in the game.
Curiously, even as it lauds the work of the commission and Arnold and Porter, the ABA concurrently issues a disclaimer that says, "The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or Commission on Immigration unless adopted pursuant to the bylaws of the Association." They appear to want it both ways.
The problem with the ABA and ILL/SPLC reports is a simple one: Neither establishes a clear case of cause and effect. Only a fool would conclude that the reason that the immigration courts are overwhelmed by a million-plus backlog is because the attorney general has in some way impeded the immigration judges (IJs) of those courts from doing their jobs. In fact, the egregious backlog IJs now face began, and substantially grew, in those eight years of silence during the Obama administration, when the ABA, as well as the ILL and SPLC, opted for dignified silence instead of clamoring for changes in the immigration courts. And it's notable that the backlogs grew as the result of the tidal wave of humans began to explode across our border in huge numbers following closely upon Barack Obama's declared decision to implement a constitutionally dubious and extra-statutory administrative amnesty of hundreds of thousands of aliens (i.e., DACA), all of them hoping to cash in, in similar fashion, through some future expansion of the program.
There are now a number of reasons for that backlog, which has continued to grow. Some have to do with egregious flaws in our border and asylum regimens that have been exploited by aliens and their open borders advocates (such as the SPLC); and some have to do with inefficiencies and lack of accountability within the courts that have resulted in inordinate numbers of cases that languish for many months as IJs grant continuance after continuance, even when the preponderance of the evidence suggests that the alien is stalling for time.
Ironically, recent attorneys general have sought to impose accountability on EOIR's courts and its appellate tribunal, the Board of Immigration Appeals (BIA). What's more, these attorneys general have also exercised their prerogative to step in when needed, to ensure that the judgments emanating from IJs and the BIA hew to the bright-line language of the law. That is the job of an attorney general in his role as ultimate supervisory authority over EOIR. It seems that this recent willingness to take on the judges for lack of accountability and direction is the true motivator of the ABA and ILL/SPLC reports.
Understanding how and why EOIR came to be a division of DOJ is important in the context of the reports and their recommendation, and requires a knowledge of history. Originally, what we now call an immigration judge was simply known as a special inquiry officer (SIO). An SIO was simply a senior or supervisory immigration officer with knowledge and expertise in the law whose job it was to ensure that when an order of exclusion was issued against an arriving alien by a line immigration officer, it met the burden of proof and was rendered in accordance with the law. Such officers were then, and are now, a part of the executive branch and so, in a way, immigration courts and the BIA might reasonably be considered as Article II tribunals.
Thus, EOIR's evolvution is consistent with multiple Supreme Court decisions that have repeatedly and explicitly made it clear that over no subject is legislative power so complete as it is over immigration and naturalization functions, because they go to the heart of American sovereignty. The Court has also said that due process for aliens is exactly what the legislature says that it is, and no more or less. For this reason, if Congress chooses, as it has with a few exceptions, not to grant aliens direct relief through the judiciary, and instead permits an alternative method of due process such as exists with the immigration expulsion system — then it is up to the executive branch to carry out the will of Congress. That is what has come to pass.
It's worth noting, though, that EOIR as an executive branch entity, has nonetheless been given plenty of latitude to develop as a quasi-independent organization inside of DOJ, although the results as I've described aren't necessarily flattering. It's also worth noting that, with the creation of the Department of Homeland Security, the prosecutorial function migrated to that entity. It is performed by trial attorneys within DHS's Immigration and Customs Enforcement (ICE) agency, and so is in every sense separated from those charged with sitting in judgment over the removal cases that ICE brings.
Of course times have changed, but it needs to be recognized that the primary authority — indeed the raison d'etre — of immigration courts and the BIA has always been in regard to expulsion proceedings. Everything else that they do falls generally into the category of "ancillary proceedings", meaning hearings that emanate as fallout from a charging document alleging removability, including considering whether the alien charged may be entitled to relief from removal by a grant of asylum or some other means. That would not change were EOIR to be updrafted into an independent agency by virtue of some congressional statute. Thus, to refer to immigration courts as a "deportation tool", as ILL and the SPLC have, completely misses the mark.
Nor, under an Article I scenario, would EOIR cease to need an overseeing authority to ensure that the judges and BIA are held accountable both in terms of quality and quantity of work products. Cases put endlessly into a spin cycle by judges loath to do their jobs are one of the reasons that the backlog has become so severe. Simply giving the immigration courts an Article I foundation will not change that; it's quite possible, in fact, that were Congress to do as these reports urge, immigration judges and BIA members might find themselves under even more intense scrutiny to clean up their backlogs and render prompt, lawful decisions.
Finally, it's worth noting that it isn't just the immigration courts that are confronting shocking backlogs conjoined with an inadequate number of judges to handle the caseload. Even our Article III courts are confronting such challenges, as has been observed in a series of recent articles produced by Law 360 (mostly behind a paywall), collectively published as a "Special Report: Inside The Judiciary's Caseload Crisis", containing no less than six articles (see "As Judicial Ranks Stagnate, 'Desperation' Hits The Bench"; "From Showdowns To Hotlines, Frazzled Judges Get Creative"; "Swamped: How Magistrate Judges Salvaged Louisiana's Judicial Crisis"; "These Are The Nation's 27 Most Overworked District Courts"; "What's In A Judgeship? More Than Meets The Eye"; and "'In A Timely Manner': Three Decades Of Judgeship Bills").
I mention this series of articles specifically because, even though one might assume that the ABA would have equal, or perhaps even more, interest in a failing Article III judiciary, it and its state chapters, when addressing the problems of the judiciary at all, inevitably focus on items such as funding levels and filling adequate judgeships and administrative court positions — emphatically not on completely restructuring the nature of the courts. (See, for instance, here.) And if this is assumption is true of the ABA, should it not also be true of the ILL and SPLC, neither of which put themselves forward as being migrant-specific focused organizations? Why do they not take on the equally distressed Article III judiciary?
In conclusion, there may or may not be valid reasons to carefully consider whether the immigration courts should become an independent Article I entity. But neither report makes that case cogently, and no one should fool himself into thinking that establishing a statutory basis would act as a magic bean that wipes away the decades of neglect and lack of oversight that brought us to this place.