Why we need Independent Immigration Courts: Part 1

This is my first attempt at a blog, which I hope to continue and update throughout the year. I hope it will be interesting and informative to everyone. Please feel free to share thoughts, ideas, topics you would like to hear about, etc.


I’ve been thinking a lot about independent immigration courts lately, especially as I see the situation at our immigration courts deteriorate more each day. The idea of a “justice” system falling under the direction and control of the lead prosecutor of the United States would be laughable if the stakes were not so high.

To understand the call for an independent immigration court, you need to understand the system as it is currently designed. In very general terms, and with some exceptions, immigrants who violate civil immigration laws or lack lawful status in the United States can end up in immigration court. Noncitizens can end up in immigration court in a number of different ways: presenting themselves at a port of entry to request asylum, entering the United States with a visa and failing to leave before it expires, or entering without permission.

The immigration courts are part of the Executive Office of Immigration Review (EOIR), an agency that is part of the Department of Justice and therefore under the direction of the Attorney General of the United States. The immigration courts are part of an administrative agency; they are not independent from the executive branch like the U.S. federal district courts, which are set up under Article III of the U.S. Constitution.  In the immigration courts, cases are heard by administrative law judges who work directly for, and at the pleasure of, the U.S. government’s lead prosecutor – the Attorney General. Thus, the immigration court system is subject to the political whims of each new administration.

When an immigration judge makes a decision that a noncitizen does not agree with, legally or factually, the noncitizen can appeal that decision to the Board of Immigration Appeals (BIA). The BIA is also part of the Executive Office for Immigration Review, the agency within the Department of Justice.  Therefore, its judges, called “Board Members” also serve at the pleasure of the Attorney. Thus, the Board of Immigration Appeals is likewise subject to the political whims of each administration.

While an immigration case is pending before the immigration court or the Board of Immigration Appeals, a noncitizen cannot generally be removed from the United States. This is because the administrative decision to remove her does not become “final” until the BIA orders her removed.

If the noncitizen does not agree with the decision in her case at the Board of Immigration Appeals, she can then appeal to the U.S. Court of Appeals for the federal circuit in which he or she lives. This “Circuit Court” is the first court in the deportation process that is an independent court under Article III of the Constitution and which is not subject to the direct political motivations of any current administration.

However, during this stage of their appeal the noncitizen CAN be deported from the United States. There is no automatic stay of removal at the federal circuit court level. Thus, many immigrants never access an independent court.

There are a number of problems with this system of “justice.”

First, noncitizens have the right to counsel in immigration proceedings, but they are not appointed free counsel, even though the deprivation of life, liberty, and property are at stake in these cases.  Noncitizens must hire immigration attorneys on their own. Counsel in immigration cases is extremely important, and those represented in immigration proceedings are at least five times more likely to win their cases. The immigration process is expensive, primarily because the laws and policies that affect the participants’ rights can change at the whims of the executive branch and its appointees, tossed about by whatever political winds are blowing at the time.

Legal representation in immigration proceedings gets more and more expensive with each level of appeal. This often means that people who cannot access their right to counsel at the first level (the immigration court)or at the administrative appeal stage (the BIA), will never be able to access an independent, non-political court, because they will not be able to pay for representation for a Circuit Court appeal.

For example, at the present time, most people seeking asylum from El Salvador, Guatemala, and Honduras can expect to have their applications denied by an immigration judge, even though under the law most of these people do qualify for legal protections. These noncitizens will lose their cases before the immigration courts across the country based on the former Attorney General Jefferson Beauregard Sessions III’s non-legally binding commentary throughout his opinion in Matter of A-B-. When these Central American asylum seekers appeal the denials of their applications to the BIA, their appeals are more often than not categorically rejected on a political basis - the Attorney General is their boss. It is only at this point in the process that they could appeal to a neutral adjudicator in the federal Circuit Courts, but before they can do so, they would be likely be deported from the United States and sent back to their deaths.  Also, they would  likely have exhausted all financial resources during the stages of the process that took place within the administrative agency.. 

The second problem is that the administrative agencies who are responsible for “justice” are completely politicized and cannot therefore be independent adjudicators of these cases. Under Trump, a good example is a recent statement from the Department of Justice spokesperson Steven Stafford, who stated this week “[o]ur asylum system is extremely generous — so generous, in fact, that it has been abused by tens of thousands of illegal aliens who have been released into the United States while their cases were pending and subsequently failed to file asylum applications or even show up for their hearings.” This statement is completely unsupported by evidence about asylum seekers and was made by the governmental agency supposedly serving as a neutral adjudicator in immigration cases. Statistics show that more than 86% of unrepresented asylum seekers appear in court and more than 97% of asylum seekers who are represented appear in court.

The same type of argument about Central American asylum seekers was made under the Obama Administration, which justified its policy of detaining women and children seeking asylum for the duration of their cases because  with the questionable conclusion that these vulnerable people supposedly posed a national security risk to the United States. Both the immigration courts and the BIA backed this political line by refusing to hold bond hearings for these women and children.  It wasn’t until an independent federal district court intervened that women and children began having fair bond hearings at family detention centers at the Artesia family detention center.

The political motives of the Department of Justice make it impossible for noncitizens to receive fair hearings on the merits of their cases, because there is constant political pressure on immigration judges to deny applications for relief and to deport. As a result, noncitizens in immigration court are are the mercy of two political agencies, the Department of Justice which adjudicates immigration cases, and the Department of Homeland Security, which prosecutes them.  In reality, the representatives of both agencies simultaneously act as prosecutors of noncitizens in deportation proceedings.

This complete lack of neutral adjudication can be seen each day in the immigration courts and at the BIA. For example: today I filed a notice of appeal with the Board of Immigration Appeals. My client is a Central American woman from El Salvador. She is entitled to asylum under our existing laws. However, the immigration judge summarily denied her case last month. In her denial, the immigration judge cited a sentence from the U.S. Department of State Report as a justification for why my client doesn’t qualify for asylum as a Salvadoran woman who is in danger of gender-motivated persecution. In her decision, the immigration judge stated:  “country conditions reports illustrate how Salvadoran law recognizes gender equality between men and women (see DOS report at pg 81 explaining that 'the Salvadoran constitution grants women and men the same legal rights.') That sentence, at page 81 in the Department of State report, actually reads "the constitution grants women and men the same legal rights but women did not enjoy equal treatment." The immigration judge literally quoted half a sentence and ignored the other half as "proof" that women do not suffer gender-motivated persecution in El Salvador and as a justification for the denial of my client’s asylum claim. This is not justice, and in fact, such a misleading citation to the evidence would be worthy of a bar complaint if an immigration defense attorney, such as myself, engaged in such behavior.

The Department of Justice does have an internal system for investigating complaints against immigration judges; however, in my experience, complaints do not lead to any results. In the case of my Salvadoran client, the BIA will likely rubber stamp the immigration judge’s legally unsupported denial, and my client will continue to lack access to impartial adjudication until she can appeal to the Circuit Court. At the point she can access an independent court, her life will be in very real danger as she will face removal to El Salvador. She will also be unlikely to be able to afford continued representation at this stage of the legal process.  For my part, I will consider offering to represent her pro bono before the Circuit Court, even if she is deported to face persecution or death while the appeal is pending, in order to fight for whatever can be gained on behalf of women like her for the future.

My client’s case is just one of many examples illustrating why independent immigration courts are needed. If you want to help, contact your members of Congress. Tell them you want to see an independent immigration court. Tell them these are life and death stakes and should not be left to the political whims of whichever party is in office. Demand some action and accountability and stand up for access to justice.