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America Needs a Fair and Independent Immigration Court

10/20/23 AILA Doc. No. 21041931. Asylum, Removal & Relief

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 and eliminated public confidence in its outcomes. The Trump Administration used these foundational flaws to manipulate the courts to their breaking points — pressuring judges to render decisions at a break-neck pace at the cost of accuracy, eliminating docketing tools, growing the backlog, and restricting access to relief.

On October 18, 2023, AILA’s Past President Jeremy McKinney testified before the Senate Subcommittee on Immigration of the Judiciary Committee. The hearing was on immigration courts, an issue AILA has championed for reform for many years. This is Jeremy’s second appearance before Congress. He first testified before the House in 2020 when AILA began its campaign to get the Real Courts Rule of Law Act introduced. At this hearing, Jeremy discussed his experience as an immigration practitioner, the pitfalls of the current court system, and proposed several solutions for improvement. Chief among his recommendations is the need for an independent immigration court and access to legal counsel for indigent noncitizens.

Watch Jeremy’s recap after the hearing:

For more information, check out:

While we wait for Congress to act and establish an independent immigration court system, here are some favorable results of AILA’s advocacy to help reform current EOIR practices. AILA garnered the following wins in the past few months:

  1. Cancellation of removal flyer: notifying noncitizens in removal proceedings that they may be eligible for cancellation of removal. This flyer also advises noncitizens of the visa backlog that will prevent them from getting their visa immediately after they win their case in court.
  2. EOIR Director’s memo to immigration judges on DHS PD: This Director’s memo was recently issued to guide immigration judges and BIA adjudicators to hold OPLA accountable for bringing PD options to a hearing. It specifically uses strong language to advise immigration judges that they should consider administrative closure over any DHS OPLA objections. It’s a great source for practitioners to use in court when advocating for administrative closure of their cases (over the usage of termination), so that their clients can continue renewing their work permits.
  3. Notice of Proposed Rule Making on EOIR schedules: This is a proposed regulation that DOJ would like to codify. AILA is overall very supportive of this NPRM, and our comment will reflect this. It gives a lot of authority back to immigration judges and BIA adjudicators to manage their own schedules, dockets, and their cases. The brief history is that the Trump Administration tried to codify regulations that took away judges’ authority to administratively close and continue cases. It would have forced them to adjudicate cases faster (and risk due process) and gave the EOIR director authority to adjudicate cases. These regulations were enjoined so the previous, and better, regulations continued on. This administration is seeking to codify these better regulations so that immigration courts do not continue to be at the mercy of administration changes.
  4. Language access in courts: EOIR issued a memo that addressed an increasingly common issue in courts – noncitizens who do not speak common foreign languages. There has been an increase in Indigenous asylum seekers and recent arrivals who speak rare languages. They are not able to communicate with judges in their primary language and a pattern of practice arose in which judges asked them to proceed in Spanish. This memo strongly states that immigration judges need to ensure that all noncitizens need to be able to proceed in their primary language and ensure that this language is available for all of their hearings. It also details that immigration judges have discretion to allow extensions and allowances for people to complete their applications for relief. It’s a major step towards protecting due process in courts and we applaud this.



AILA Urges Congress to Create an Independent Immigration Court

AILA urges Congress to pass the Real Courts, Rule of Law Act (Real Courts bill) previously introduced in 2022 by Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA) as H.R. 6577. Unlike other courts, our nation’s immigration courts are controlled by the Department of Justice — the very same law enforcement agency that is charged with prosecuting criminal immigration cases in federal courts. The Real Courts bill would create an immigration court system under Article I of the Constitution, reforming our immigration courts into an independent system that can ensure fair and efficient outcomes.


The Real Courts, Rule of Law Act of 2022 (H.R. 6577)

Resources on the Real Courts, Rule of Law Act of 2022 and Creation of an Independent Court

AILA Urges the Biden Administration to Reform the Immigration Courts

Agency Announcements

A.G. Garland Certifications

Practice Resources

View All Practice Resources   Contact AILA’s EOIR Liaison Committee

Read Minutes from AILA National Committee Meetings with Agencies

Other Resources