The American Bar Association (ABA) issued a scathing report Wednesday that notes U.S. Immigration courts are “irredeemably dysfunctional and on the brink of collapse.”
“The immigration courts are facing an existential crisis,” states the 72-page executive summary of the report, adding that the only way to fix the serious systemic issues within the court is to transfer functions to a newly-created Article I court. “This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.”
The ABA published a 300-page report in 2010 on the immigration adjudication system and how to reform the court with proposals to promote independence, fairness, efficiency and professionalism. The 2019 update report makes similar recommendations.
“The 2010 Report served as a blueprint for many legislative and administrative reform efforts,” an ABA summary states. “Unfortunately, most of the reform efforts never came to fruition. As explained in the Update Report, which chronicles changes to the system from 2010 through 2018, there have been virtually no new immigration laws addressing issues covered by the 2010 Report. At the same time, certain policies that were in place at the time of the 2010 Report and that promoted the fairness, efficiency and due process in the immigration system have been undermined during intervening years.”
The new ABA report, which is 176-pages, focuses on the issues relating to the four major government entities involved in immigration adjudication – the Department of Homeland Security, immigration judges and the immigration courts, the Board of Immigration Appeals (BIA) and the federal circuit courts that review decisions – as well as matters of representation in removal proceedings and system restructuring.
Two of the major systemic issues the immigration courts suffer from, according to the ABA, are wide disparities in asylum grant rates among immigration judges and public skepticism and a lack of respect for the immigration court process.
“Recent events, including specific executive policies and practices exerting unprecedented levels of control over immigration judges and their job performance, have deteriorated public trust in the immigration court system and undermined judicial independence,” the ABA states.The report continues:
One of the more pervasive ways in which judicial independence has been undermined in the last nine years is by ever-changing direction from the executive branch. Each administration has used the immigration courts as an extension of immigration enforcement mechanisms by adjusting enforcement priorities to align with the prevailing political agenda. Executive orders and policies that reshuffle immigration judges’ dockets without input or reference to the status of any other pending matters are disruptive and counterproductive to the independence of the courts and the administration of justice. This approach undermines judges’ ability to independently manage their courtrooms and to administer their dockets in a fair and efficient manner, as well as the public’s perception of judicial neutrality and independence. Efforts should be made to minimize political interference with immigration court operations and proceedings.”
The Article I court the ABA recommends creating would be an independent system established under Article I of the Constitution to replace the entire Executive Office for Immigration Review (EOIR), including the immigration courts and Board of Immigration Appeals, which would include both a trial level and an appellate level tribunal.
“We support the creation of an Article I court system for the entire immigration judiciary, but suggest that the specific features regarding qualifications, selection, tenure, removal, administration, supervision, discipline and judicial review to be revisited in conjunction with other stakeholders; provided that, with respect to judicial review, final decisions of the new court should be subject to review in regional federal courts of appeals, with the scope of review being no less broad than under current law regarding review of BIA decisions,” the report states. “We now view an Article I court system for the entire immigration judiciary as much superior to an independent agency in the Executive Branch.”