For those who support removing those ineligible to remain in the U.S. as well as those who support fairness in the system, there should be equal interest in increased funding and independence for the courts.
If you went to court to dispute a speeding ticket and saw the same person prosecuting you also serving as the judge rendering a decision, well, you might as well be in immigration court.
While our federal system of government was designed to allow for checks and balances between the different branches of government, the Department of Justice serves as both prosecutor and judge on immigration matters. This is a structural flaw in our immigration court system and allows politics to impact both due process and fairness in the system.
While we might joke that it seems at times that local police are assigned “ticket quotas”, the prior administration imposed numerical quotas on case completion for its immigration judges as a measure of performance. The Department also established politically motivated restrictive policies related to areas of immigration law for judges to follow and limited judges in their authority to terminate, close or continue cases. This emphasis on moving cases quickly may well have moved some of the backlog of cases along but does not further the goal of well-reasoned decisions.
It is curious that while there has been an increasing emphasis on speed in immigration court decision making, there has not been a parallel increase in funding to allow it to handle the dramatic increase of cases as a result of increased enforcement activity. For example, in 2018, Congress appropriated a bit under $17 billion for Customs and Border Protection, $7.5 billion of Immigration and Customs Enforcement and only $437 million for immigration courts. The mismatch in judges versus case completions has led to more cases left pending every year and the backlog continuing to grow.
For those who support removing those ineligible to remain in the U.S. as well as those who support fairness in the system, there should be equal interest in increased funding and independence for the courts. While some may complain that the backlog of cases delays the removal of undocumented or criminal aliens, those in proceedings who have U.S. citizen family members, qualify for asylum, or who have other remedies available wait years to be able to normalize their status.
Introduced in the House on February 3, the Real Courts, Rule of Law Act of 2022 would establish an independent immigration court system. This will remove America’s immigration courts from under the authority of a single person, the attorney general who, as above referenced, is also the nation’s chief prosecutor and who appoints the judges. The bill will ensure that qualified, impartial individuals are appointed, improve transparency and accountability as well as adequate resources to help to reduce the enormous backlog. This legislation is endorsed by the American Bar Association, the conservative Federal Bar Association, and other legal organizations.
Members of Congress should agree that a fair and impartial court system is of benefit to all parties to proceedings and to the nation and so should be established.