The head of the immigration judges union asked a House panel Wednesday for the “urgent creation” of independent immigration courts, separate from the Department of Justice structure that oversees the current system.
National Association of Immigration Judges (NAIJ) President Ashley Tabbador told members of the House Judiciary Subcommittee on Immigration and Citizenship that “America needs an immigration court that is free from improper influence on the decisions of immigration judges.”
Immigration courts are a part of the Department of Justice’s Executive Office for Immigration Review (EOIR), and their decisions can be directly overruled by the attorney general.
The union and the executive branch have butted heads in the past, but friction has increased during the Trump administration, to the point where EOIR in August petitioned the Federal Labor Relations Authority to decertify NAIJ as a union.
Immigration courts are under pressure from both left and right, in large part because of the backlog of more than a million immigration cases awaiting processing by the courts.
Democrats mostly blame the Trump administration, while Republicans point to immigration numbers.
“We can all agree that the current state of our immigration court system is not only completely inefficient, it is truly appalling,” said Rep. Debbie Mucarsel-Powell (D-Fla.).
“Backlogs, overworked judges, lack of access to counsel, all of these things are harming immigrants,” she added.
Rep. Ken Buck (Colo.), the top Republican on the panel, attributed the backlog to “people breaking our law and crossing our border.”
Buck admonished the witnesses for focusing on administrative issues like a 700-case-per-year quota implemented on judges by the Trump administration, rather than on border security and illegal immigration.
“Not one of you talked about the need for border security,” said Buck.
“Judge [Tabbador] … when you say in your opening statement that this quota of 700 cases has not reduced the backlog, the backlog is caused by more illegal immigrants coming into this country and into your court. It’s not caused by quotas or lack of quotas,” added Buck.
Still, Tabbador said the courts’ most pressing deficiency is their subordination to EOIR.
Immigration courts are not the only tribunals formally separate from the judiciary — the tax and bankruptcy courts, for example, are known as Article I courts.
Article I courts are created by Congress for review of specific policy areas and their judges do not receive lifetime appointments, but have a degree of judicial independence that immigration courts lack.
“The judicial role of the Immigration Court is simply irreconcilable with the law enforcement mission and role of the DOJ,” wrote Tabbador in her testimony to the panel.
Andrew Arthur, a resident fellow at the Center for Immigration Studies (CIS), a group that advocates for reduced immigration, said moving immigration courts out of EOIR wouldn’t reduce the backlog, and could have unintended consequences.
“There would be no congressional accountability. You can call in the director of EOIR if you have problems with the issues that have been discussed. You don’t have that ability when you have an Article I court. Who are you going to call in, the Chief Justice of the United States?” Arthur, the minority witness on Wednesday’s panel, told members.
Rep. Pramila Jayapal (D-Wash.) said that immigration judges’ lack of independence undermines their ability to clear cases.
“In this case, there are a lot of compelling statistics and stories of judges who have not been able to practice immigration law, and I think that CIS consistently either uses statistics to their own benefit or disregards those that are actually out there,” said Jayapal.
“Our immigration judges, if they really are judges adjudicating cases, then they need to have discretion to be judges,” added Jayapal.
Tabbador questioned the Trump administration’s motives behind implementing quotas and other restrictions on immigration judges.
“Every policy that they have implemented has increased the backlog and part of that then has been to use the backlog for other indefensible policy reasons, so I think there’s definitely an argument to be made that there is a an effort to implode the court to increase the backlog in order to justify what we’ve otherwise be measures or quote-unquote solutions that we would never consider,” Tabbador told The Hill.
Still, Tabbador said previous administrations have also interfered with the courts to their detriment, citing the Obama administration’s orders to prioritize the cases of unaccompanied minors.
“To one degree or another, every administration has used the court consistently with their law enforcement priorities,” said Tabbador.
But with quotas and other measures imposed on judges, the Trump administration has “just compounded an already problematic system,” she added.