Lofgren bill would move immigration courts outside DOJ

Proposal aims to protect courts from political influence, tackle 1.6 million-case backlog

Rep. Zoe Lofgren, D-Calif., talks with reporters after a March 3, 2020, meeting. (Tom Williams/CQ Roll Call file photo)
Rep. Zoe Lofgren, D-Calif., talks with reporters after a March 3, 2020, meeting. (Tom Williams/CQ Roll Call file photo)
Posted February 3, 2022 at 10:38am

Rep. Zoe Lofgren unveiled sweeping legislation Thursday to overhaul the immigration court system by moving the courts outside the executive branch and making them an independent entity.

Currently, the courts are housed within the Department of Justice. Under Lofgren’s bill, immigration courts would be restructured under Article I of the Constitution, turning them into an independent system, such as the U.S. Tax Court, the U.S. Court of Appeals for Veterans Claims and the U.S. bankruptcy courts.

The proposal is intended to insulate immigration courts from politics, preventing presidents and attorneys general from using the courts to shape their immigration policies.

“Our immigration court system will never be effective as long as it is housed under the Department of Justice,” Lofgren, D-Calif., said in a statement. “After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair.”

The plan by Lofgren, who chairs the Judiciary Committee’s immigration panel, also aims to alleviate a crushing case backlog — approaching 1.6 million cases — that hampers the entire immigration system. The bill would allow the immigration court system to establish its own budget and empower its judges to control their own dockets and compel agency action that is withheld or delayed.

Mimi Tsankov, president of the immigration judges’ union, said at a Jan. 20 hearing on the issue that DOJ control over the courts have yielded “extreme pendulum swings” that have left judges scrambling to balance their judicial responsibilities with political scrutiny from the executive branch. The average judge has a backlog of 2,700 cases, she said.

[Congress mulls independent immigration courts as backlog soars]

Lofgren’s bill would also allow immigration judges to impose civil fines for contempt of court and allow the court system to appoint temporary judges and establish temporary court facilities.

The issue of independent immigration courts has attracted lawmaker attention for years. In the last half decade, both Democrat and Republican-led committees have hosted congressional hearings on the challenges facing U.S. immigration courts.

However, as immigration has grown increasingly partisan in recent years, many Republican lawmakers have lost interest in forging compromises on the issue. The bill’s introduction follows the busiest year at the southwest border in recorded history, with border agents logging more than 1.7 million encounters with migrants in fiscal 2021.

“This subcommittee should be focused on securing our border and enforcing our immigration laws,” Rep. Tom Tiffany, R-Wis., said at January’s hearing.

Lofgren’s proposal is backed by the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges.

However, some legal experts worry that moving the courts outside the executive branch could leave them vulnerable to the whims of the congressional funding cycle.

“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,” Art Arthur, a former immigration judge and a fellow at the immigration restrictionist group, Center for Immigration Studies, said last month.

The bill’s introduction comes nearly two months after the DOJ resolved an ongoing fight with the immigration judges’ union.

Under the Trump administration, the DOJ successfully petitioned to decertify the decades-old union in a decision critics say was political. The Biden administration, however, reached a settlement with the union and agreed to recognize it as the collective bargaining agent for the nation’s immigration judges.

Despite the agreement, the Federal Labor Relations Authority last month stood by its earlier finding that judges are management officials and thus union-ineligible — putting the union’s status in question.

Suzanne Monyak contributed to this report.