The House Subcommittee on Immigration and Citizenship recently held a hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” Three of the four witnesses testified that there has been an increase in political interference which has resulted in a lack of judicial independence, and this has eroded due process.

Their solution is to transfer the functions of the immigration court from the Department of Justice (DOJ) to an independent Article I court, which is a court created by Congress pursuant to Article I of the Constitution.

The immigration court needs more resources and has management problems, but there are good reasons for keeping it in the Executive branch. The real threat to due process, moreover, is not political interference, but hiring judges who don’t have any immigration law experience.

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Article 1 court

The president of the National Association of Immigration Judges, Judge Ashley Tabaddor, testified that when Congress established the Department of Homeland Security (DHS), it moved the Immigration and Naturalization Service (INS) to DHS and kept the immigration court at DOJ to insulate it from enforcement influences.

Leaving the immigration court under the authority of the nation’s chief federal prosecutor, the U.S. Attorney General, was not an effective way to insulate it from enforcement influences, she suggested.

Judge Tabaddor claimed that, “the will of Congress cannot be carried out by a court located within DOJ.”

But keeping the Attorney General in charge of immigration law adjudications is the will of Congress. According to the Congressional Research Service, the Attorney General has had statutory authority to interpret and adjudicate immigration law for decades. The most general statement of this authority can be found in section 103(a)(1) of the Immigration and Nationality Act of 1952 (INA).

Section 103(a)(1) was amended when DHS was created, but authority over immigration adjudications was left with the Attorney General. The pertinent part of section 103(a)(1), as amended, reads as follows:

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“The Secretary of Homeland Security shall be charged with the administration and enforcement of … laws relating to the immigration and naturalization of aliens … Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

The fourth witness in the hearing, Andrew Arthur, quoted a paragraph from a Supreme Court decision which explains why the immigration court should remain in the Executive Branch:

“[W]e have 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.’ . . . 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.”

He also said that an Article 1 court would not free the judges from political influence. Funding for an Article 1 court would not be part of DOJ’s budget. It would come directly from Congress, which would make the court vulnerable to political pressures from Congress, and the makeup of future congresses could be much different than it is today.

Hiring judges without immigration law experience

Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.

In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:

“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”

EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.

None.

That’s a problem for justice.

Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”

The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.

For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.

How many inexperienced immigration judges would know that?

This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.

What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.

None of this will matter if the backlog crisis isn’t brought under control

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The immigration court backlog was “only” 542,411 cases in January 2017, when President Donald Trump Donald John TrumpBarr criticizes DOJ in speech declaring all agency power 'is invested in the attorney general' Military leaders asked about using heat ray on protesters outside White House: report Powell warns failure to reach COVID-19 deal could 'scar and damage' economy MORE took office. It was 1,089,696 cases three years later.

In fiscal 2019, the immigration court completed 275,552 cases, which was the second-highest completion total in its history. But DHS filed more than 443,000 new cases that year.

EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.

It may be too late to find an acceptable solution. Even if no new cases are given to the immigration court, at the rate of 275,552 completions a year, it would take four years to clear the backlog.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.