Fairness is a fundamental precept underlying our American democracy and especially our judicial branch. To secure fairness, the Founding Fathers created an independent third branch of government where all would be equal before the law—the rich, the poor, the government, the accused. Our Article III judges’ independence is secured, at least in part, by life tenure, and today our magistrate and bankruptcy judges also serve lengthy and set terms of office. These judges are independent from and not answerable to the other two branches of government. Unfortunately, this is not true of our immigration judges.
Current Board of Immigration Appeals (BIA) members and immigration judges are considered only “attorneys representing the United States in litigation” not independent, fully empowered judicial officers. They are responsible for carrying out formal adjudications yet are deprived of the judicial authority—expressly conferred by Congress—to impose contempt sanctions upon noncompliant parties when necessary. They also lack independence to freely decide the matters before them and, indeed, are subject to discipline if the attorney general disagrees with their decisions. The potential for political influence puts due process and rule of law at risk.
In addition, a large number of immigration judges and members of the BIA are former Department of Justice (DOJ) or Department of Homeland Security (DHS) attorneys. This isn’t surprising—those lawyers have years of deep, practical experience with the subject matter and the system. Moreover, the immigration judges I know are true public servants striving for independence and are earnest to do justice.
But add these factors together—and the fact that some immigration courts are co-located with Immigration and Customs Enforcement offices—and right or wrong, it can create the perception that immigration judges and DHS attorneys are working together, or that the immigration courts act merely as “rubber stamps” to approve and uphold DHS actions. These perceptions degrade the respect of aliens appearing before the immigration courts and contribute to increased court absences, prompted by fear and belief that the system is rigged. It’s not enough that justice be done, it must also be seen to be done.
Since 2013, the FBA has advocated for the establishment of an Article I “United States Immigration Court” to replace the Executive Office for Immigration Review (EOIR) of the DOJ as the principal adjudicative forum under Title II of the Immigration and Nationality Act. More recently, with the aid of our Immigration Law Section, the FBA has drafted and shared with Congress model legislation* to create an Article I immigration court and provide for more timely and effective adjudication of immigration matters. (See http://www.fedbar.org/Advocacy/Article-1-Immigration-Court.aspx.)
In an Article I court, trial judges would gain control over their dockets and no longer be subject to shifting decisions by political superiors to prioritize case A over case B (and vice versa) or send judges off to border areas to handle a few cases while their regular dockets are further backlogged. The new court itself would establish and modify administrative and procedural rules as needed, free of current byzantine requirements for consultation with numerous, disparate offices and agencies. While we recognize that no structural alternative, including that of an Article I court, will single-handedly fix the current 700,000-case backlog at the trial level, the restructuring of immigration adjudication as an Article I court is the quintessential “good government” measure.
Our immigration judiciary, as with all our institutions, represents this nation’s traditional fidelity to the rule of law and its commitment to fundamental fairness for all who enter our courts. Judges themselves strive to be independent and fair in their deliberations.
They should also be independent in fact.
*Thank you to FBA Immigration Section Chair Elizabeth Stevens, Government Relations Member Jeffrey Hennemuth and Government Relations Counsel Bruce Moyer for their dedicated work on the FBA’s model legislation and their contributionsto this message.
Kip T. Bollin is the FBA president and a litigation partner at Thompson Hine LLP in Cleveland, Ohio. Kip Bollin can be reached at firstname.lastname@example.org