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Lawmakers consider immigration court overhaul to crack backlog of 1.6 million cases

Members of the House Judiciary Committee met Thursday to hear testimony about making immigration courts independent of the Department of Justice as the system faces a historic backlog of nearly 1.6 million cases.

The panel's subcommittee on immigration heard testimony from immigration judges and leaders of national bar associations calling for reorganization of the country's immigration court system that many said is strained by an increasing caseload and political pressures.

With a rise of 140,000 cases just since October, the unprecedented backlog facing the system is only getting worse, according to data from Syracuse University's Transactional Records Access Clearinghouse.

Mimi Tsankov, president of the National Association of Immigration Judges and a former immigration judge, attributed the backlog, at least in part, to the oversight of the immigration courts system by the Department of Justice, an executive agency led by the attorney general, who is a political appointee.

Tsankov said this makes the country's immigration court's subject to political whims and can create whiplash for immigration cases when there's a transition between administrations with different immigration priorities.

"That ping-pong between one administration's priorities and another’s, reducing judicial effectiveness," Tsankov said. “Our inability to complete cases is a function of those shifting priorities.”

Tsankov said this means judges are constantly shuffling which cases they prioritize, an issue that slows the pace of cases getting resolved.

Representative Zoe Lofgren, who chairs the Subcommittee on Immigration and Citizenship, expressed her support for reorganization and indicated a bill to reform the immigration courts may be in the future.

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“I believe Congress should act to pass legislation to create an immigration court system independent of the executive branch,” the California Democrat said.

Elizabeth Stevens, speaking on behalf of the Federal Bar Association, joined in the call for immigration courts to be reorganized as independent Article I courts, referring to the federal tax courts as a potential model for the new system.

Stevens said insulating immigration courts from the DOJ and political influence is critical for "the perception of fairness of impartial adjudication and the ability of judges to be secure in their appointments and not have to worry about political impact."

Most immigration judges in the current system are probationary employees who can be removed at will.

"The hiring process is completely under the control of the attorney general, a nontransparent process, and the performance of immigration judges is evaluated not on the quality of opinions, but how quickly they can complete their cases," said Karen Grisez, speaking on behalf of the American Bar Association.

If it were to become an Article I system, judges would be appointed by the president and serve 15-year terms, a change Grisez said would bring judges into the system with more knowledge of immigration case law and create universal standards for judicial conduct and rulings.

Art Arthur, resident fellow in law and policy at the Center for Immigration Studies, argued meanwhile that removing DOJ oversight would do nothing to improve the shortage of resources that plagues immigration courts.

At a time when high numbers of asylum seekers are crossing the southwest border, Arthur said completely restructuring the system would be "complex and costly." He also raised concerns that doing could still leave the system subject to political influence.

"Creating an independent immigration court would largely remove congressional oversight of immigration decision-making," Arthur said. "Finally, an Article I court would be left to fight for resources. Immigration is contentious, and Congress with the power of the purse could easily starve an immigration court whose decisions it did not agree with of funding."

Rather than making the entire system independent of the DOJ, Arthur suggested lawmakers consider creating an independent circuit court of appeals that would alleviate the caseload of the other immigration courts and create uniform rulings on appeals.

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Representatives of the bar associations pleaded for nonpartisan reforms, but Representative Tom Tiffany said the courts need to remain subject to congressional and executive oversight. The Wisconsin Republican argued that lawmakers' concerns would be better spent focused on the rate of southern border crossings.

“[Making] immigration courts an Article I court is not the topic we should be focused on. This subcommittee should be focused on securing our border and forcing our immigration law," Tiffany said. "This myth that we have that you will achieve independence of a court by moving it to a place where it’s not under elected officials is just that, a myth.”

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Representative Zoe Lofgren, a Democrat from California, speaks during a committee meeting about reorganizing the immigration courts system on Jan. 20, 2022.

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