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Bill Aims to Remove US Immigration Courts from Executive Branch

FILE - The U.S. Capitol dome is seen on Capitol Hill, June 12, 2019.

Immigration judges have long urged Congress to pass legislation to make the immigration court system an independent entity sheltered from the policy agendas of any given administration.

For the first time, a concrete effort is underway on Capitol Hill to make that happen and that could also address a record-high backlog of immigration cases.

Democratic legislators introduced the Real Courts, Rule of Law Act of 2022, which would take the courts out of the Department of Justice (DOJ) and restructure them into an independent immigration court system set up by Congress under Article I of the U.S. Constitution.

U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.

FILE - Rep. Zoe Lofgren, D-Calif., speaks during a committee hearing on Capitol Hill, July 24, 2019.
FILE - Rep. Zoe Lofgren, D-Calif., speaks during a committee hearing on Capitol Hill, July 24, 2019.

"Our immigration court system will never be effective as long as it is housed under the Department of Justice," Lofgren said in a statement. "This structural overhaul will strengthen due process and restore faith in the system by taking politics out of the immigration courts for good."

Judge Mimi Tsankov, president of the National Association of Immigration Judges, said in a statement emailed to VOA that moving the immigration courts out of the DOJ is a step toward making the courts more efficient and reflects a broad and bipartisan consensus that the U.S. immigration court system is broken.

"With the case backlog now standing at 1.6 million cases, an Article 1 immigration court will ensure greater judicial independence, cut a bloated bureaucratic structure, allow for more-effective case management, and reduce reliance on outdated technologies," Tsankov wrote.

The U.S. immigration courts, unlike other courts, fall under the Department of Justice, the law enforcement agency charged with prosecuting criminal immigration cases in federal courts, under an office known as the Executive Office for Immigration Review.

Lofgren, who also chairs the House Judiciary Committee's immigration panel, said the current immigration court system lacks procedural and structural safeguards to protect it against political influence.

Immigration judges, for example, are attorneys appointed by the attorney general, which makes them employees of the Department of Justice. As a result, they face pressure to decide cases based on the policies and priorities of the governing administration, whether it is Democratic or Republican.

The bill would establish a revamped immigration court system with its own rules and its own budget.

Immigration court backlog

The proposed legislation also aims to relieve the current 1.6 million immigration case backlog that experts say slows the entire immigration system.

If passed by Congress and signed into law, the bill would give judges significant power over their dockets and allow them to decide which cases can be withheld or delayed, decisions that are currently subject to DOJ guidance.

Judges would be able to put aside cases in which applicants are waiting on the government to process a legal permanent resident card or any other immigration relief within the law that allows immigrants to stay in the country. That alone would help alleviate the mushrooming court backlog.

The backlog has been growing for more than a decade, but according to the Transactional Records Access Clearinghouse (TRAC), a research institution at Syracuse University, a deluge of new cases added between October and December 2021 significantly worsened wait times.

TRAC analysis shows how the shutdown of immigration courts during the COVID-19 pandemic worsened the backlog, along with a surge in new cases filed by the Department of Homeland Security.

"If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations — all the way back through at least the George W. Bush administration — have failed when they tried to tackle the seemingly intractable problem of the Immigration Court 'backlog,'" according to TRAC's latest analysis.

The American Bar Association, the Federal Bar Association and the American Immigration Lawyers Association support Lofgren's initiative and worked with her staff in writing the proposed legislation.

Not so fast

Reforming immigration courts has little chance of becoming law without bipartisan backing. During a January 20 House Judiciary subcommittee hearing, Republicans offered a preview of their position on Lofgren's bill, saying rather than set up an independent immigration court, Congress should pay attention to the situation at the U.S.-Mexico border.

"An Article I court is not the topic we should be focused on. This subcommittee should be focused on securing our border and enforcing our immigration laws. … Congress should retain its role, our rightful role, in making sure that we along with the executive branch oversee the immigration courts," said Representative Tom Tiffany, a Republican from Wisconsin, at January's hearing.