Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
The current rush to redress the wrongs of the Migrant Protection Protocol, the so-called “Remain in Mexico” policies, is the perfect example of why we need a robust court system on the back end. As the Biden administration begins processing those who have been living in de facto refugee camps at the U.S. southern border and allowing them to have their cases heard from within the United States, critics have warned that this is a return to a “catch and release” approach that will grow the number of unauthorized immigrants in the United States. That argument is easily countered: most of these individuals came here seeking safety. They want a court proceeding to hear their case and obtain legal protection, but often don’t know what the next step is, even when they make it to their destination. In fact, even with the terrible procedural barriers that currently exist, more than half of immigrants appear for court appearances according to the Department of Justice itself. Make the process accessible, clear, impartial, and efficient, and ensure that each party has the same levels of representation and understand of the legal process, and the “catch and release” argument falls apart.
When the courts are run this chaotically, and where the subjects of the proceedings are not guaranteed legal representation to help them navigate the complexities, the system cannot produce reliable results. How can we have faith that the person who is deported would not have established a right to remain in the United States under current laws, had they had their rights adequately explained and had they been able to argue their case eloquently against the trained government attorney pushing for their removal?
Of course, the entire immigration system needs a complete overhaul. But with children’s detention facilities re-opening at too fast a pace, with refugee admissions expected to go up, with relief being announced for Venezuelans in the form of Temporary Protected Status designation, with expected programs for DREAMers, farmworkers, and many more, the U.S. government needs to start somewhere. The immigration courts are a good place to start in order to restore faith in the system as a whole. If the United States seeks to regain its footing as a leader on human rights, it’s crucial that judicial independence and integrity be a clearly held value.
There have been talks for years on Capitol Hill about creating an independent immigration judiciary. That time, very clearly, has come. In the meantime, the Biden administration can take on both short- and medium-term solutions to address this issue.
A year into the COVID-19 pandemic, many, though not all, courts remain closed, including some of the nation’s busiest immigration courts such as Los Angeles and New York City. Government prosecutors could use this time to review pending cases and offer administrative closure to those who don’t fit new enforcement priorities, thereby reducing the overall backlog and preparing courts to reopen and function without a crushing workload that is steadily increasing. The Obama administration undertook such an initiative in 2011, closing down courts for days at a time to allow the Immigration and Customs Enforcement (ICE) prosecutors time to go through open cases and remove from the active docket those that did not fit a current priority for deportation. This resulted in nearly 90,000 cases being closed between 2011 and 2017. The only downside to these administrative closures was many individuals’ decision did not proceed through the closure process, because they were prevented from qualifying for work authorization while they awaited resolution of their cases. To increase the efficacy of this strategy this time around, the closures should be effectuated in such a way that individuals could qualify for work authorization while they wait, effectively in limbo, for their cases to be resolved.
The Biden administration — working in partnership with states, private funders, and bar associations — should devise new ways of connecting immigrants facing deportation to legal assistance. Legal representation is the single most effective way of ensuring that individuals appear in court (96 percent of the time, when non-detained), of making the court system more efficient, and of upholding due process in proceedings. The Department of Justice has historically funded Legal Orientation Programs (LOPs), where non-profit providers give general overviews of the process in a variety of settings. Though funding for these programs was scaled back and frequently threatened in the past Administration, it is time to revive and enhance support for these programs. Future legislation should include funding for legal services to some or all facing deportation. Incentives should be created to encourage pro bono work by private attorneys. Further, the Office For Legal Access Programs, within EOIR, was absorbed into the Office of Policy under the Trump administration but should resume independence in its mission and be given resources to meet the needs of communities. Efforts by state and local governments over the last four years have created models to maximize investments in immigration legal services and to foster economies of scale in legal services delivery. These models, such as those promoted by New York State or supported through the Vera Institute’s SAFE initiative, should be replicated with federal support to extend representation to a maximum number of individuals.
As Chen suggests, the new DOJ leadership should create a judicial appointments commission to oversee recruitment and hiring of immigration judges, and also “set standards of judicial conduct that ensure impartiality and require judges with strong ideological leanings to be trained to minimize improper biases.” These accountability measures are a necessary precursor to the ultimate solution: an independent immigration judiciary, not beholden to the whims of the executive and able to make life-or-death decisions for asylum seekers and others free from political interference.
Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.