Congress mulls independent immigration courts as backlog soars

Current court structure within DOJ creates 'inherent conflict,' head of judges' union says

Rep. Zoe Lofgren, D-Calif., speaks at the news conference last September in the Capitol. (Bill Clark/CQ Roll Call file photo)
Rep. Zoe Lofgren, D-Calif., speaks at the news conference last September in the Capitol. (Bill Clark/CQ Roll Call file photo)
Posted January 19, 2022 at 3:12pm

House Democrats will hear testimony Thursday on the prospect of making the immigration court system — now housed within the Justice Department — independent.

The hearing by the House Judiciary Committee’s immigration panel will feature current and former immigration judges, as well as representatives from major bar associations. It comes amid the release of a new report that found the current immigration backlog is approaching 1.6 million cases.

The hearing also comes as the subcommittee’s chairwoman, Rep. Zoe Lofgren, D-Calif., prepares to put forth legislation to revise the immigration court system. A committee staffer said Lofgren continues to work on the bill and did not provide a timeline for the legislation to be unveiled.

The immigration backlog has grown by more than 17 percent — or roughly 250,000 cases — since June 2021, when the case backlog stood at roughly 1.36 million, according to data released Tuesday by the Transactional Records Access Clearinghouse, a Syracuse University research center. The backlog grew by nearly 24 percent since December 2020, it found.

“This has been really persistent and accelerating,” said TRAC’s director, Susan Long. “Will that pace continue? I don't have a crystal ball. But I don't see anything on the horizon that's going to change that either.” 

Mimi Tsankov, president of the immigration judges’ union and one of the hearing panelists, said she will address in her opening remarks the “root causes” of the challenges facing the immigration courts, including lengthy case backlogs.

She said the court structure within the DOJ creates an “inherent conflict” within the system, where immigration judges — intended to serve as neutral adjudicators — must answer to the U.S. attorney general, the political head of a law enforcement agency.

Changes in presidential administrations may also worsen the court’s growing case backlog as new government officials seek to make their mark, she said. Attorneys general may shape immigration law by rewriting immigration appellate decisions, which can force immigration cases to be relitigated under new case law.

Pulling the court system out of DOJ, and turning them into independent Article I courts, is the only “enduring solution,” Tsankov said.

“We really wouldn't be having the goalposts changing on us every few years, which is what we've been dealing with,” she said. 

The Judiciary hearing will also feature testimony from two lawyers speaking on behalf of the American Bar Association and the Federal Bar Association. Both organizations have advocated in favor of remaking the immigration courts into independent Article I courts. 

But panelist Art Arthur, a former immigration judge and a fellow at the immigration restrictionist group, Center for Immigration Studies, said he plans to testify that making the immigration courts independent would aggravate the court backlog. 

He worried that yanking the court system out of DOJ would leave the system fighting for funding in a Congress increasingly divided over immigration. He pointed to funding battles for U.S. Immigration and Customs Enforcement, which arrests and detains undocumented immigrants within country borders.

“You need look no further than the manner in which detention funding for ICE was restricted in past Congresses during the Trump administration to know that if that court makes decisions that people in Capitol Hill don’t like, that they will starve it for funding,” he said. 

“It's almost as if you're going to be orphaning the immigration courts if you take them out of that DOJ hierarchy,” Arthur added.

He instead plans to suggest creating an independent circuit court to handle immigration appeals, similar to the U.S. Court of Appeals for the Armed Forces, to relieve the burden on the federal circuit courts. 

Not a partisan issue

An independent immigration court system has been a topic that has caught lawmakers’ eyes for years. Democrat and Republican-led committees have hosted at least two additional congressional meetings in the last half decade on the challenges facing the U.S. immigration courts.

In April 2018, the Senate Judiciary Committee’s immigration panel, then in Republican control and led by Sen. John Cornyn, R-Texas, held a hearing titled “Strengthening and Reforming America’s Immigration Court System.” 

And Lofgren oversaw a hearing in January 2020 on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”

Both hearings also included remarks from Arthur and representatives from the American Bar Association and immigration judges’ union, formally known as the National Association of Immigration Judges.

Neither Arthur nor Tsankov view the immigration court debate as politically partisan. 

“Both sides should care about legitimizing the integrity of immigration court outcomes,” Tsankov said. 

Arthur agreed the topic is not a partisan one, but rather “a strictly constitutional issue and a practical one.”

However, the topic of immigration typically draws forceful rhetoric from opposite ends of the aisle. 

Thursday’s hearing follows the busiest fiscal year at the southwest border in recorded history with border agents logging more than 1.7 million encounters with migrants. The immigration courts have also seen increased numbers of asylum filings since 2016.

Republican lawmakers are likely to bring up the high numbers of arriving migrants at the southwest border, as they have in previous immigration hearings. 

The hearing also comes just weeks after the Justice Department resolved its ongoing fight with the immigration judges’ union. Under the Trump administration, DOJ successfully petitioned to decertify the decades-old union in a decision critics say was political. 

However, in December, the Biden administration reached a settlement with the union and agreed to recognize it as the collective bargaining agent for the nation’s immigration judges. 

Caroline Simon contributed to this report.