An
office within the Department of Justice, our nation’s immigration court system
– known as the Executive Office for Immigration Review – lacks procedural and
structural safeguards to protect it against political influence. Immigration
judges are not judicial officers – they are lawyers, appointed by the nation’s
top prosecutor, the Attorney General. As employees of the Department of
Justice, immigration judges are charged with adjudicating cases in accordance
with the policies and priorities of the governing administration. Each
Administration – Democratic and Republican – has used the immigration courts as
a mechanism to shape immigration policy.
“A
hallmark of our system of democracy and the rule of law is an independent
judiciary. Our
immigration court system will never be effective as long as it is housed under
the Department of Justice. 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,” said Chair Zoe Lofgren. “Congress must act by passing
The Real Courts, Rule of Law Act to create an immigration court system
independent of the Executive Branch. This structural overhaul will strengthen
due process and restore faith in the system by taking politics out of the
immigration courts for good.”
“Since its founding, our
immigration court system has been mired by political interference from both
Democratic and Republican administrations,” said Chair Jerrold
Nadler. “Our country needs an immigration court system that can
deliver just decisions in accordance with the law, not one that is subject to
ever-changing political whims. I’m proud to join Subcommittee Chair Lofgren in
introducing the Real Courts, Rule of Law Act, which would establish an
independent Article I immigration court system consistent with other judicial
institutions across our nation. By moving the court out from under the
Department of Justice, this legislation will ensure that our immigration court system
can effectively prioritize due process and the rule of law.”
“The creation of an
independent immigration court would ensure that our immigration judges are no
longer subject to the political whims of any particular administration,” said
Chair Hank Johnson. “Our current immigration backlog is approaching
1.6 million cases and lacks procedural and structural safeguards to protect the
human beings that make up these cases. By establishing an independent
immigration court, this bill will ensure impartiality and transparency when it
comes to these life and death decisions and allow these judges to administer
justice efficiently and effectively. I’m proud to join Rep. Lofgren in
introducing The Real Courts, Rule of Law Act of 2022.”
Click here for a one-pager on immigration court reform and The Real
Courts, Rule of Law Act.
Click here for a section-by-section summary of The Real Courts, Rule of
Law Act.
Click here for full text of The Real Courts, Rule of Law Act.
Bill Details
The
Real Courts, Rule of Law Act of 2022 will:
- Establish
an independent immigration court – similar to the U.S. Tax Court –
consistent with Article I of the United States Constitution. The
newly-formed United States Immigration Court will be comprised of a trial
division, an appellate division, and an administrative division.
- Ensure
that qualified, impartial individuals are appointed to serve as
immigration judges at both the trial and appellate levels.
- Ensure
that the United States Immigration Court has adequate resources and
support to operate efficiently while giving the Court authority to appoint
temporary immigration judges and establish temporary court facilities to
ensure the expeditious administration of justice.
- Improve
transparency and accountability in Immigration Court proceedings by
requiring publication of all court rules and procedures, as well as
precedent decisions and pleadings while protecting confidential
information.
- Improve
efficiencies by allowing the Immigration Court to establish its own budget
without review by the Executive Branch and empowering immigration judges
to control their own dockets and compel agency action that is unlawfully
withheld or unreasonably delayed.
- Strengthen
the integrity of immigration court proceedings by giving immigration
judges authority to impose civil money penalties for contempt of court.
- Ensure
due process by preserving the privilege of counsel, ensuring quality
interpreter services, and mandating legal orientation programs for
individuals appearing before the Court.
Support
The
Real Courts, Rule of Law Act of 2022 is supported by the American Bar
Association, American Immigration Lawyers Association, Federal Bar Association,
National Association of Immigration Judges, American Immigration Council,
Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense,
National Immigrant Justice Center, National Immigration Law Center,
Niskanen Center, and Women’s Refugee Commission.
“The American Bar
Association has high regard for the mission and goals of the Justice
Department, but we strongly support the creation of an independent Article I
immigration court system. It is essential that every judge is free to decide
cases based solely on the facts and the law, without external pressure or
influence,” said Reginald Turner, President of the American Bar
Association (ABA).
“This legislation and the
effort to rebuild our immigration court system is welcome indeed. For decades,
the deck has been stacked against immigrants. Getting a fair day in court is
nearly impossible when the immigration courts are under the authority of the
nation’s chief prosecutor: the Attorney General. Regardless of their
administration or political party, Attorneys General can abuse the extraordinary
power they have over the immigration courts and sacrifice due process for
expediency. When that has happened in the past, the most vulnerable
people – including asylum seekers, victims of violence, and people deprived of
their liberty – have paid a high price. There remains vital work to be done by
Congress to reform the immigration law itself—specifically, restoring
discretion to immigration judges. But foundational to any fair system is a
neutral judge. This bill provides that foundation,” said Jeremy
McKinney, President-elect of the American Immigration Lawyers Association
(AILA).
“After spending several
decades helping develop and advocate for this landmark legislation, the Federal
Bar Association commends Chair Lofgren and her colleagues for introducing a
bill today that would facilitate a long-lasting solution to separate the
politics of immigration enforcement from the needs of immigration
adjudication. Having collaborated with a number of other prominent legal
associations to get to this historic point, FBA remains committed to ensuring
that we improve access to justice and due process for individuals appearing
before immigration judges. The Constitution gives Congress the ability to
create new federal courts and with a current backlog of 1.6 million cases, it
is clear to our members that the time has finally come to fix a broken and
ineffective system,” said Anh Le Kremer, President of the Federal Bar
Association.
“The NAIJ applauds the
House Judiciary leadership for introducing an Article I Immigration Court bill.
Chair Lofgren, Chairman Nadler and Chairman Johnson, in introducing this
legislation, are rectifying the historical mistake of having an immigration
court housed in a law enforcement agency. Given the many problems facing the
Immigration Court, Congress's leadership in removing the court from the
Department of Justice is welcome relief, and is a crucial step in restoring due
process and court efficiency to our broken system,” said Judge Mimi
Tsankov, President of the National Association of Immigration Judges (NAIJ).
Related Hearings
On
January 20, 2022, the Subcommittee on Immigration and Citizenship held a
hearing titled “For the Rule of Law, An Independent Immigration Court.” Click here for the full video, witness testimonies, and supporting
documents from that hearing.
On
January 29, 2020, the Subcommittee on Immigration and Citizenship held a
hearing titled “Courts in Crisis: The State of Judicial Independence and Due
Process in U.S. Immigration Courts.” Click here for the full video, witness testimonies, and supporting
documents from that hearing.
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