Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts

Testimony Before the House Judiciary Committee, Subcommittee on Immigration and Citizenship

By Andrew R. Arthur on January 29, 2020

The 465 immigration judges (IJs) in our nation's 63 immigration courts, and the agency for which they work, the Executive Office for Immigration Review (EOIR) — a component of the Department of Justice — play a crucial role in our system of justice and national security, but face many challenges.

For decades, and through successive administrations, EOIR has been an afterthought. The agency, and the immigration courts, have been inadequately funded and have suffered from a lack of appropriate guidance and oversight. The courts have also borne the consequences of various, and shifting, executive-branch immigration policies and priorities, as well as loopholes created by statute and poorly reasoned judicial opinions that have encouraged migrants to enter and remain in the United States illegally.

In FY 2019, 851,508 migrants were apprehended entering illegally along the southern border, a 13-year high, and in a change from the not-so-distant past, the majority, 473,682, were adults with children, known as FMUs. They overwhelmed limited DHS resources, resulting in many being released with nothing more than an NTA and a court date. A federal bipartisan panel determined that such releases were the major "pull factor", exacerbated by a 2015 federal court ruling that accompanied minors be released within 20 days by DHS, drawing those migrants to enter illegally, at great danger to all and trauma to their children.

Those cases are more complicated to complete, and they have caused the immigration courts' dockets to balloon. IJs now face a crushing caseload of more than one million pending cases, not counting hundreds of thousands that are administratively closed. That backlog is bad for the parties, bad for the courts, and bad for our system of justice.

The administration, and in particular DOJ, has responded to that crisis where Congress has not. Using their certification authority, the last three attorneys general have created bright-line rules for IJs and the BIA to follow on continuances, adjudicating asylum claims, and assessing the immigration consequences of post-conviction relief, among other issues. The administration has fought for funding and worked with our regional partners to craft policies to turn off the magnets that draw migrants to enter illegally.

These policies, though controversial, have worked, and done so consistent with due process. December 2019 saw the lowest number of migrants apprehended at the border in 15 months.

One such policy, the Migrant Protection Protocols, requires inadmissible migrants at the southern border to wait for their hearings in Mexico. Last week, I observed MPP hearings in Texas, and found that the IJs I saw went above and beyond in providing due process to those respondents.

Performance metrics for IJs, instituted in October 2018, have also been controversial, but I note that last year, IJs completed more than 275,000 cases, 92 percent more than in FY 2016, with just 97 IJ complaints, 42 percent fewer than four years before. Furthermore, the number of circuit-court remands to EOIR (602) is the lowest in the last 12 years, and just over one-third of the number of remands in FY 2008 (1,799).

Some who oppose these initiatives have called for abandoning the EOIR system and creating an independent Article I court. This will not resolve the issues IJs face, which are largely driven by a lingering lack of resources and the backlog, which in turn was driven by the crisis at the border, exacerbated by the aforementioned flaws in the law.

Moreover, any restructuring would be complicated and expensive, absorbing resources that would be better directed toward improving EOIR and providing it with more funding.

The arguments in favor of restructuring are less compelling then they would appear. I served as an immigration judge under attorneys general from both parties, and my independent judgment was never impinged in any way. Nor was there any perception that my decisions were influenced by the fact that I had been a former INS attorney. I had a relatively high level of autonomy over my docket, and could rearrange cases in appropriate situations. Most importantly, I ran my court in a professional manner, and expected the same of the parties who appeared before me.

The arguments against restructuring, on the other hand, are compelling.

Removing the functions of EOIR from DOJ would have serious constitutional implications. Immigration determinations are closely tied to the foreign policy of the United States, an issue traditionally recognized as solely within the purview of the executive branch. In fact, the Judicial Conference of the United States, the policy-making body for the federal courts, generally opposes specialized courts in the judiciary, but advises that any Article I immigration court remain in the executive branch.

It would also largely remove congressional oversight of the courts, an issue that is important to the committees of jurisdiction, as the January 29, 2020, hearing demonstrates.

Finally, an Article I court would struggle for resources. Immigration is a contentious issue, and a future Congress, with the power of the purse, could easily starve an immigration court it did not agree with of funding.

Our IJs need more resources, and bright-line rules to guide their determinations. Both resources and guidance have been lacking for years. Fortunately, the administration has made both a priority.

Read my written testimony here.