House Democrats are taking aim at the Executive Office of Immigration Review (EOIR), which is the immigration court system of the United States. EOIR is an agency within the Department of Justice, making it unique in that it is not an “independent” Article III court, but instead a court system within the executive branch in Article II of the Constitution.
The House Judiciary Subcommittee on Immigration and Citizenship held a hearing on proposals to change the immigration courts to Article III courts independent of the Justice Department. The subcommittee held the hearing in light of the continued growing backlog of court cases, which only grew worse as the Border Patrol apprehended more than 2 million illegal aliens in President Biden’s first year in office, many of whom petitioned for asylum protections.
The subcommittee’s chairwoman Rep. Zoe Lofgren (D-Calif.) supports moving the courts out of the Justice Department. Reporting indicates that Rep. Lofgren plans to introduce legislation doing just that, with support from the National Association of Immigration Judge’s president, Mimi Tsankov. Tsankov was a panelist at the subcommittee’s hearing and argued in favor of moving EOIR out of the Justice Department.
Tsankov said in her opening statement that “to fix the backlog and other problems, Congress should remove the immigration courts from the DOJ and create an independent immigration court.” Tsankov also noted that “the DOJ’s control over the courts has yielded extreme pendulum swings, and our apolitical judges are reeling as they navigate their judicial responsibilities on the one hand and heavy political scrutiny.”
However, moving immigration courts out of the Justice Department would not shield them from political interference. Andrew Arthur, a former immigration judge and current visiting fellow at the Center for Immigration Studies, appeared on the panel. Arthur’s 57-page opening statement noted a number of issues with the proposals to make EOIR an “independent” court. In his conclusion, Arthur wrote that:
Restructuring the immigration courts and the Board of Immigration Appeals (BIA) will almost certainly fail to address the core problems that are facing those tribunals. Moreover, not only would such restructuring be complicated and costly (and likely ultimately ineffective), but any proposal that would move either the immigration courts or the BIA out of the executive branch would implicate serious constitutional concerns.
Arthur noted in his testimony that Congress could withhold funding to the independent immigration courts if the ruling party did not approve of the courts’ decision making in immigration cases. Arthur wrote:
Given the significant passions surrounding immigration, I have no doubt that a future Congress would attempt to limit resources to an independent court if one or another (or both) chamber’s members did not agree with the decisions of that court. One look no further than the restrictions placed over the past few years on the funding of ICE detention to understand this fact.
At least under the aegis of DOJ, EOIR is somewhat protected from these passing political passions when it comes to funding. On its own, an independent immigration court and/or BIA would have to fight for funding with little leverage. If members are concerned about political interference from within the executive branch as it relates to EOIR, they should be more concerned about political interference in an independent tribunal from the branch that holds the power of the purse.
That is spot on, and Congress has and does play political games with the funding of agencies with which the ruling party dislikes. For this same reason, FAIR opposes appropriating money for Citizenship and Immigration Services (USCIS).
Moving EOIR out of the DOJ will not increase case completion or make significant progress on addressing the backlog. These are symptoms of a greater problem: the loopholes in asylum law that give so many illegal aliens access to the immigration courts in the first place. Since fiscal year 2001, immigration judges denied asylum relief to more than 58 percent of applicants. To be frank, the majority of asylum-seeking aliens do not qualify for asylum in the first place. But they all have their day in immigration court, increasing the backlog and stressing the resources of EOIR.
Ultimately, the best way to address issues within the immigration court system is to address the longstanding structural issues within America’s immigration policy itself, not toying with the construction of the immigration courts.