The Truth About our Immigration Court System

I’m an immigration attorney based in Greensboro, NC. Every single day that I go to immigration court with a client, I see how the system is in desperate need of reform. From the gutting of judicial independence, to the absence of due process in too many courtrooms, to the immense backlog and constant destruction and re-traumatization of people including children, I and my colleagues are well aware that a band-aid won’t fix what’s wrong with the immigration courts. What we need is a complete overhaul and an independent Article I court for immigration cases. That’s the only way we get judges that have the independence and authority to manage their own dockets and a fair day in court for immigrants. Let me explain.

Right now, immigration courts are part of the Department of Justice (DOJ). That means the judges, clerks, and other staff work for the Executive Office for Immigration Review (EOIR).  Guess who the head of EOIR reports to? It’s the Attorney General. That’s right, the nation’s top prosecutor is the person who gives immigration judges their marching orders. Does it make sense for the prosecution to boss the judge? No, it does not. An independent immigration court system would allow justice to prevail over politics.

The Trump Administration’s repeated attempts to speed up deportations are not working; in fact, the case backlog has more than doubled in the last three years. Everything is stuck in molasses. What used to take about six months in North Carolina now takes years.  Even unopposed motions to our appellate board, the Board of Immigration Appeals,  are taking a year or more to resolve. The need for an Article I court is not only sound public policy, but it will ensure we offer everyone a full and fair hearing, and a timely decision on their case.

Another major problem is disparate decision-making – particularly in the asylum context. Take for instance my local immigration court in Charlotte; it falls within the jurisdiction of the 4th Circuit Court of Appeals, as do the immigration courts in Arlington and Baltimore. Because all three of those immigration courts look to identical case law, a rational person would assume asylum denial rates would be similar. They are anything but. Arlington and Baltimore’s denial rates are a bit more than 50 percent, in line with the national average. My home court is no advantage for asylum seekers: Charlotte’s denial rate is more than 90 percent! But EOIR doesn’t want to ensure that greater uniformity and fairness prevail – they just eliminated the only in-person annual training for immigration judges and are promoting the judges who are well outside the mainstream on asylum law.

And don’t get me started about the tent courts and lack of due process at the border as migrants are forced to “Remain in Mexico” despite massive danger and struggle to find an attorney or even keep themselves or their families safe. Immigration judges are being forced to adjudicate cases with a severe lack of due process – from the volume of cases and a dearth of counsel, to the lack of notice and dangerous conditions in Mexico. The tent courts create an even larger chasm between America’s immigration courts and justice for all.

Luckily, Congress is taking notice. On January 29, 2020, I testified to the House Judiciary Committee’s Immigration Subcommittee about these dire problems. During the hearing, I explained how the immigration court system has a conflict of interest built into it. I highlighted the fact that the Department of Justice (DOJ) has been able to exercise unwarranted control over immigration judges and their ability to manage their dockets, effectively stripping away their judicial independence. The hearing was an essential forum for exploring – and beginning to remedy – proceedings that can literally determine life or death for some immigrants, or whether a family will be permanently unified or permanently separated. There are nearly 500 judges and appellate adjudicators deciding cases in EOIR. Their boss is the Attorney General. It doesn’t matter which party holds the White House, that needs to change. We need an independent Article I immigration court, and we need it now.


Interested in hearing more? Click through to view the FB Live video we shared right after the hearing.

by Jeremy McKinney