Immigrants deserve immigration courts independent of the DOJ
Having judges and prosecutors answer to AG has inherent conflict
It’s like a political ping pong table. Currently, our immigration courts are subjected to bouncing back and forth from one administration’s priorities to another. This is because our nation’s immigration courts are not independent arbitrators; they are controlled by the Department of Justice (DOJ), which is headed by a political appointee, the attorney general. The attorney general, aka the chief federal prosecutor, oversees the immigration courts and the approximately 500 trial immigration judges and 23 immigration appeals judges.
Imagine a criminal hearing where the judge and the prosecutor both work out of the same office and have the same boss. It’s simply ludicrous. Judges are supposed to be a neutral deciding party and not on the prosecutor’s side.
As a managing attorney for the New Mexico Immigrant Law Center (NMILC), I saw firsthand the political ping ponging from one political agenda to another as we shifted from the Obama administration to the Trump administration. The Trump administration appointed Jeff Sessions as attorney general, who overruled established case law and set his own precedent, which attempted to prevent those fleeing domestic violence and gang violence from qualifying for asylum. Denial rates for asylum skyrocketed to an unprecedented 71% under the Trump administration compared to 54% under the Obama administration.
On a local level, the lack of neutral, independent judges affects New Mexicans. NMILC is one of the primary providers of legal services for immigrant victims of domestic violence, human trafficking and sexual assault in New Mexico. Immigration law ensures protection to victims who come forward and report their abusers and victimizers to police and who participate in the prosecution.
Under the Obama administration, immigrant victims who had filed for immigration benefits were given the time they needed to wait for the adjudication of those benefits. However, under the Trump administration, crime victims were swept up in the race to deport as many immigrants as possible. They stripped immigration judges of judicial independence by preventing them from effectively managing their case docket.
Immigration courts need to be independent from the executive branch. The lack of an independent court system not only affects our clients, it has also led to massive backlogs and inefficiencies that exist within the immigration court system.
Some good news is that establishing an immigration court under Article I of the Constitution has been endorsed by two bipartisan commissions and by more than 120 bar associations and legal organizations. This past February, Reps. Zoe Lofgren, D-California, Jerrold Nadler, D-N.Y., and Hank Johnson, D-Georgia, introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577). This vital piece of legislation would create an immigration court system under Article I of the Constitution, reforming our immigration courts into an independent system that can ensure fair and efficient outcomes.
A planned markup of the bill in the House Judiciary Committee in April was postponed when the committee adjourned before consideration of the legislation. Even so, our immigrant communities deserve due process in their cases. That is why we urge our U.S. representatives and Congress to pass H.R. 6577. Our immigrant communities deserve an independent immigration court.