President Donald Trump’s strict immigration policies display the need to evaluate the country’s judiciary proceedings on immigration. How exactly do immigration courts function compared to civil or criminal court procedures? In short, the immigration courts are controlled by the executive branch of the United States government.
This note functions as a call to Congress to develop legislation that would make the immigration court system into an independent Article I court. The current system is broken, and it is time for the immigration courts to become an independent Article I court to eliminate unjust decisions based on policy rather than the merits of the case. In the past, Congress has created several Article I courts using its constitutional power with examples being the tax and bankruptcy courts. Additionally, the Federal Bar Association has drafted proposed legislation to create an Article I immigration court because there is a consensus that the current immigration court system is broken. We have reached the tipping point.
Immigration proceedings should not be determined by the Attorney General without due process. This note begins by providing the historical background of immigration adjudication dating back to the Immigration Act of 1891, when the United States immigration court system was enacted by Congress. The relevant history is outlined up to today’s laws, noting any relevant changes to immigration adjudication. The history provides details on how the executive branch, specifically the role of the attorney general gained power.
Section III discusses the differences between federal and state judges compared to immigration judges. Federal and state judges do not face the same pressures from the executive branch that immigration judges face. This section also compares the similarities and differences between immigration trials and criminal and civil trials.
Section IV discusses separation of powers and, specifically, how the executive branch’s control of the immigration courts has created an unfair shift of power and an imbalance between the branches of the government. To further increase the power of the executive branch, President Trump recently attempted to strip certain immigration judges of their right to unionize (or union bust)by targeting judges that do not share his views on immigration in general and removal proceedings, in particular. This section moves to the issues involved with former Attorney General Jeff Sessions’ unprecedented and increased use of self-certification to direct the Board of Immigration Appeal to refer cases to the attorney general for review. This section will review four specific instances in which former Attorney General Sessions exercised this power.
Section V discusses how this increase of power creates separation of powers issues among the three branches of the United States government. The power to determine immigration cases oversteps the executive branch’s bounds by entering into unconstitutional territory. Section VI provides recommendations and a firm call to action for immigration courts to become Article I courts and therefore, out of the reach of the President’s influence on immigration judges to rule on cases in accordance with his policy goals. The final section summarizes that it is time to put an end to the executive branch turning its back on asylum seekers
Section VI provides recommendations and a firm call to action for immigration courts to become Article I courts and therefore, out of the reach of the President’s influence on immigration judges to rule on cases in accordance with his policy goals. The final section summarizes that it is time to put an end to the executive branch turning its back on asylum seekers.