Washington, D.C. (January 29, 2020) – The U.S. House Judiciary Committee’s Subcommittee on Immigration and Citizenship examined “The State of Judicial Independence and Due Process in U.S. Immigration Courts” today. The nation’s 465 immigration judges serving in the 63 immigration courts face many challenges, including a caseload of more than one million pending cases, not counting hundreds of thousands that are administratively closed.
Just returned from visiting the U.S. southern border, tent courts, and a residential detention center, Andrew Arthur, the Center’s resident fellow in law and policy and past immigration judge, testified that “The administration, and in particular DOJ, have responded to that crisis where Congress has not. Using their certification authority, the last three attorneys general have created bright-line rules for immigration judges (IJs) and the BIA to follow on continuances, adjudicating asylum claims, and assessing the immigration consequences of post-conviction relief, among other issues. The administration has fought for funding and worked with our regional partners to craft policies to turn off the magnets that draw migrants to enter illegally.”
Arthur concluded, “These policies, though controversial, have worked, and done so consistent with due process. December 2019 saw the lowest number of migrants apprehended at the border in 15 months.”
Performance metrics for IJs, instituted in October 2018, have also been controversial, but Arthur noted that last year, IJs completed more than 275,000 cases, 92 percent more than in FY 2016, with just 97 IJ complaints, 42 percent fewer than four years before. Furthermore, the number of circuit-court remands to EOIR (602) is the lowest in the last 12 years, and just over one-third of the number of remands in FY 2008 (1,799).
Arthur’s testimony: https://cis.org/Testimony/Courts-Crisis-State-Judicial-Independence-and-Due-Process-US-Immigration-Courts
Arthur also spoke out strongly against creating an independent Article I court, placing the courts outside the executive branch. He pointed out the importance of having the Attorney General involved due to the role foreign policy needs to play, the likelihood that in the future Congress could cut resources if they disagree with its opinions, and the serious constitutional issues. Arthur recommended providing judges more resources and bright-line rules and taking actions to shut off the magnet that attracts so many aliens to the U.S.
Arthur notes that “The creation of an Article I court will not address any of the issues that the panel was focused on—backlogs, inconsistent grant rates among immigration judges, ineffective service of hearing notices, and the treatment of alien minors. Those are all issues that are best dealt with by EOIR, with appropriate oversight by the Department of Justice and Congress. The real issue facing the immigration courts is the increase in the backlog of cases, which was caused by the surge of migrants at the southern border. That surge was caused by loopholes in the law those migrants, and their smugglers, exploited to gain entry to the United States. The proposal to move the immigration judges and Board of Immigration Appeals to an Article I court is a solution in search of a problem.”
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