Featured Issue: Immigration Courts

The U.S. immigration court system suffers from profound structural problems that have severely eroded its capacity to deliver just decisions in a timely manner, as well as public confidence in its outcomes. The root cause of this dysfunction is a conflict of interest built into the system itself: the immigration courts are overseen by the Attorney General (AG), who also supervises the U.S. Department of Justice (DOJ) lawyers who prosecute immigration cases in federal courts. In other words, the chief prosecutor is also the chief judge.

For years we have seen the detrimental effects of a politicized immigration court system. Administrations have repeatedly made policy decisions not because they’re efficient or legally sound, but because they’re politically expedient. This flawed system enabled the Trump administration to transform the immigration courts into an enforcement agency rather than a fair and neutral arbiter, turning immigration judges into “prosecutors in ... judge’s robe[s].” The administration pressured judges to render decisions at a break-neck pace at the cost of accuracy, while stripping them of their ability to control their dockets. EOIR policies—including hiring practices, docket interference, and attempts to terminate the immigration judges’ union—politicized the immigration courts more than ever before.

America needs a just and efficient immigration judicial system not just to ensure due process, but also to ensure the success of the enforcement system and the legal immigration system. It is imperative to make immediate reforms to guarantee judicial independence, fairness, and consistency in decision-making. And ultimately, to operate in a balanced and fair manner, Congress should pass legislation creating an Article I immigration court system that is independent from DOJ.

Rehabilitating Immigration Courts

It is imperative that the Biden administration makes immediate reforms to ensure a functioning court system and due process in the wake of political manipulations by the Trump Administration. See below for resources on why we need the courts to be rehabilitated, what needs to be done, progress that’s been made, and how you can help.

Resources on Rehabilitating the Immigration Courts

• Former Immigration Judges Ask AG Garland to Review and Rescind Prior AG Certifications – May 25, 2021
• Senators Send Letter to Attorney General Garland to Stop Attacks on Immigration Judges – May 24, 2021
• New York Times (Opinion): Immigration Courts Aren’t Real Courts. Time to Change That. – May 8, 2021
• Policy Brief: Why President Biden Needs to Make Immediate Changes to Rehabilitate the Immigration Courts - February 12, 2021
• How the Trump Administration Broke the Immigration Court System – April 19, 2021
• Senators Urge Attorney General Garland to Make Key Reforms to Immigration Courts - March 23, 2021
• AILA and Partners Send Letter to President Biden on DOJ Reform of Immigration Courts and Enforcement Priorities – February 1, 2021
• Just Security: The Urgent Need to Restore Independence to America’s Politicized Immigration Courts – November 12, 2020
• Senators Announce GAO Investigation of the Politicization and Mismanagement of Immigration Courts – September 14, 2020

Take Action

• Use AILA’s template to ask your member of Congress to make immediate reforms to guarantee judicial independence, fairness, and consistency in decision-making.

Agency Announcements

• EOIR Issues Policy Memo Revising Case Flow Processing Before the Immigration Courts – April 2, 2021
• EOIR Rescinds Policy Memorandum on Case Processing at the BIA – March 17, 2021

Practice Resources

• Practice Alert: Rotating IJ Schedules No Longer Available on EOIR's Website – April 9, 2021
• Practice Alert: EOIR Final Rule Making Major Changes to BIA Procedures Enjoined by District Court – March 26, 2021
• Practice Alert: Federal Court Grants Partial Injunction of Proposed EOIR Fee Increases – January 23, 2021

Reforming Immigration Courts

AILA believes America needs an independent, Article I immigration court that will administer our nation’s immigration laws free from political manipulation. See below for resources the urgent need Article I court reform.

Resources on Reforming the Immigration Courts

• AILA Policy Brief: Restoring Integrity and Independence to America’s Immigration Courts – January 24, 2020
• Letter from AILA, the American Bar Association, the National Association of Immigration Judges, and the Federal Bar Association: Legal Associations Call for Independent Immigration Court System - July 11, 2019
• NGO Letter: Congress Must Establish an Independent Immigration Court – February 18, 2020
• House Judiciary Subcommittee Hearing: Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts – January 29, 2020

Take Action

• Use AILA’s template to ask your member of Congress to create an independent immigration court.

Cite as AILA Doc. No. 21041931.