It’s no secret that Americans are deeply divided over immigration. For both Democrats and Republicans, beliefs about immigration have become sacred, leaving little room for compromise.
But one thing many Americans share, regardless of political affiliation, is pride in our nation’s court system and the belief that U.S. courts should be a model of fair and impartial justice to the rest of the world. From that shared principle, there is one urgently needed aspect of immigration law reform that deserves bipartisan support: creation of independent, Article I immigration courts.
What we now call the immigration courts are not actually courts at all, at least not in the usual sense of the word. Rather than being part of the federal judiciary, the immigration courts are an office of the Department of Justice (DOJ). Immigration judges are actually lawyers who work for the attorney general who can decide on any immigration case, at any time. This power was exploited by the Trump administration to achieve a restrictive agenda, but the system long predated that administration and continues today — hanging around, to borrow the words of Justice Robert H. Jackson, like a loaded weapon to be used by any administration to achieve any political agenda.
The immigration courts fall far short of the founding principles of fair and impartial adjudication because they arose by historical accident, not from any deliberation about good government. In the spring of 1940, President Franklin D. Roosevelt sent Undersecretary of State Sumner Welles to meet with Hitler, Mussolini and others about the war and future peace in Europe. Welles returned home spooked by rumors of a “fifth column” — Nazi supporters who looked like locals but were plotting to overthrow Allied nations from within. Welles convinced Roosevelt to hastily move the immigration services from the Department of Labor (DOL), where they had long been associated with workforce development, to the DOJ. In the DOJ, they reasoned, immigration officials could work hand-in-hand with J. Edgar Hoover’s FBI to catch would-be spies in the U.S.
In fact there was no “fifth column;” the insinuation was largely a Nazi hoax to undermine Allied morale. It worked then and, tragically, its effects are still being felt today. Seventy-five years after the end of World War II, the immigration courts remain part of our nation’s law enforcement apparatus, improperly equating immigration with crime. Though immigration judges now wear black robes and sit on benches to lend an air of formality to their decisions, immigration judges enjoy none of the protections from politics that Americans expect of the federal judiciary. The attorney general, through a power known as “self-referral,” still looks over the shoulder of every immigration judge in every case. Far from having life tenure, immigration judges can be disciplined for failing to meet administration agendas. And DOJ crafts every regulation governing the practices of those courts, including regulations designed to restrict immigration judges from exercising powers such as granting continuances, which are considered essential to achieving fundamental fairness in their courtrooms.
From 1940 until 2016, this arrangement was viewed as incongruous but mostly innocuous, as attorneys general rarely intervened in the daily functioning of the immigration courts. That comfort disappeared during the Trump administration. Trump’s attorneys general self-referred and redecided 17 cases in four years, a rate nearly four times higher than any previous administration. Those decisions included restricting asylum for victims of unremedied domestic violence or gang violence and prohibiting immigration judges from temporarily closing cases so the parties could resolve administrative issues.
These decisions emphasized that the attorney general, not the immigration judge actually hearing the case, decides what happens in the immigration courts. For example, when an unaccompanied minor named Reynaldo Castro Tum didn’t appear for his immigration court hearings, Immigration Judge Steven A. Morley sought to close the case temporarily to give the Department of Homeland Security (DHS) time to demonstrate that its notices had been sent to the correct address. Instead, then-Attorney General Jeff Sessions referred the case to himself and wrote an opinion denying that immigration judges have the power to temporarily close cases to allow resolution of administrative issues — a broad question that had not even been presented in Castro Tum’s case. On remand, an immigration court administrator appeared in Judge Morley’s courtroom and read an order to remove Castro Tum from the country.
Administrative closure is not just a procedural nicety. Depriving immigration judges of the power of administrative closure leads to the removal of immigrants with rights to lawful residence under the immigration laws. For example, if an individual is in removal proceedings before an immigration court when their U.S. citizen spouse or employer files a petition to sponsor them with the U.S. Citizenship and Immigration Services (USCIS), that agency cannot rule on the petition — a path to a green card — while the immigration court case is open. But without administrative closure, an immigration judge has no power to temporarily close the removal case and allow USCIS to consider the petition. Instead, under the Trump administration’s rule, the immigration judge is expected to hear the case and potentially order the individual removed from the country, even if they have a meritorious petition to stay.
President Biden has a rare opportunity to lead reform of the immigration courts to something befitting the American vision of justice. Biden should call for Congress to create truly independent immigration courts by moving them out of DOJ and into an independent Article I court system, like the U.S. Tax Court or the U.S. Court of Federal Claims. Judges on these types of tribunals are appointed by the president with the advice and consent of the Senate, but then they are insulated from politics for the remainder of their terms. Creating an independent Article I immigration court system wouldn’t change the underlying immigration laws or DHS’s right to enforce them. It would simply ensure that all individuals before the courts of the United States receive a fair hearing sheltered from the shifting winds of politics.
Alison Peck is a law professor and co-director of the West Virginia University Immigration Law Clinic and author of “The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction.”