In recent years, immigration has risen to the top of America’s collective consciousness. From President Trump’s infamous “Muslim ban”1 to the separation of families at the border2 and the Biden Administration’s response to Haitian refugees (and its subsequent response to Afghan and Ukrainian refugees),3 the fervor surrounding immigration has transcended administrations. At the crux of all these discussions is the broad and near-unlimited authority the executive branch exercises over immigration policy and enforcement — and the way that authority impacts noncitizens currently navigating the system.
Each year, hundreds of thousands of noncitizens appear in immigration court before Immigration Judges (IJs),4 almost always for removal proceedings.5 An estimated sixty-three percent of these noncitizens do not have counsel.6 This Note argues that executive control over immigration adjudication subjects IJs to a variety of conditions that bias the entire adjudicatory system in favor of removal, resulting in an irreparably dysfunctional system. While Congress ponders the creation of an Article I immigration court in response to these concerns, the executive branch has the power to implement a variety of smaller reforms that have often gotten lost in the shadows of the structural-reform discussion. This Note cuts through that noise to provide a list of reforms that are simpler and less controversial, yet still impactful — reforms that the sitting President could implement immediately.
Part I summarizes the role IJs play within the current immigration court system and explains how this structure has opened the door for executive control and influence over IJs. Part II summarizes existing reforms and concludes that an Article I immigration court is the best way forward. Part III explains various improvements that can and should be implemented in the meantime, and then analyzes their place in the existing statutory and administrative framework.
A. The Unique Structure of the Immigration Adjudication System
Congress established the current structure of the immigration legal system when it created the Department of Homeland Security (DHS) in 2002 and gave the agency control over most immigration functions.7 The Department of Justice (DOJ) retained control of the Executive Office for Immigration Review (EOIR),8 which houses the entire immigration court system.9
IJs are attorneys appointed by the Attorney General of the United States (AG).10 Within the immigration court system, they oversee hearings involving noncitizens DHS alleges to be subject to removal.11 These judges exercise wide discretion in making relief decisions, which commonly turn on subjective determinations such as witness credibility; as a result, IJs have a tremendous impact on people’s likelihood of being able to stay in the United States.12 Parties may appeal IJ decisions to the Board of Immigration Appeals (BIA), which is also nested within EOIR and consists of attorneys appointed by the AG.13 The BIA rarely hears oral arguments,14 yet its decisions have binding precedential value nationwide.15 In certain instances, noncitizens may appeal BIA decisions to the federal courts of appeals.16 A deferential standard of review applies in some form at every level of the appeals process.17
B. Executive Branch Influence over IJ Employment and Decisionmaking
Because the executive branch is tasked with enforcing immigration law, the President and their administration have considerable latitude in designing their own immigration system — even when the “letter of the law” has not changed.18
For one, the AG has near-exclusive authority over the hiring process — a process made more significant by the high turnover rate among IJs.19 At times, hiring has been overtly political: during the Bush Administration, for example, the DOJ hired IJs based almost entirely on political affiliation20 despite a stated intention to “improve [the immigration courts’] performance and quality of work.”21 More generally, IJs are predominantly previous DHS attorneys, who argue for non-citizens’ removal in immigration court, which risks “systematizing proenforcement biases.”22
Even when hiring is not overtly political, the DOJ is constrained by very little when it hires IJs — in fact, individuals may be hired as IJs without any previous immigration experience at all.23 Naturally, this renders job training — the nature, scope, and depth of which are exclusively determined by the DOJ24 — incredibly important. In 2018, this training featured then-AG Sessions informing the IJs in attendance that they were part of the law enforcement function of the DOJ,25 a sentiment that was repeated by then–Deputy AG Rosenstein at the investiture of newly appointed IJs in 2019.26 Perhaps even more jarringly, AG Sessions also advised IJs that the “vast majority” of asylum claims were unfounded or fabricated.27
After being hired and trained, IJs are still continuously subject to the influence of the sitting administration’s policy. For example, IJs serve a two-year probationary period during which they are even more vulnerable to removal;28 as a result, many newly appointed IJs feel like they must issue decisions in accordance with the administration’s policy views in order to keep their jobs.29 More generally, the sitting presidential administration is a statistically significant predictor of removal rates,30 suggesting that these sorts of subtle disciplinary signals are incredibly effective in shaping hearing outcomes.
Moreover, by virtue of their location within the DOJ, IJs are necessarily acting on the AG’s behalf rather than independently.31 In fact, IJs statutorily act as the AG’s “delegates” — every decision an IJ makes is technically being made in the AG’s capacity.32 That the AG serves as the “agency head” for IJs might be less troubling if the AG did not also supervise the Office of Immigration Litigation, the executive office tasked with defending immigration cases for the government — in other words, advocating for noncitizens’ removal — in appellate court.33
Through their authority over the immigration court system, then, the AG has tremendous influence over the day-to-day adjudication of immigration cases (which, by some estimates, is over a thousand cases — and people’s fates — decided per day34).
C. Executive Branch Influence over IJ Work
Unlike Administrative Law Judges (ALJs), whose hiring, firing, and general decisionmaking are governed by the Administrative Procedure Act35 (APA), IJs are generally overseen by the Office of the Chief Immigration Judge, which “establishes operating policies and oversees policy implementation for the immigration courts [and] provides overall program direction and establishes priorities” for all IJs.36 Similarly, procedural requirements and safeguards such as the Federal Rules of Evidence and the APA requirements for formal hearings do not apply in immigration court.37 As a result, IJs are deciding “death penalty cases . . . in a traffic court setting.”38
The executive branch’s influence over IJs is so prominent that IJs bear more resemblance to fungible DOJ employees than to judges. This has various implications that render the court system incompatible with its judicial façade. To begin with, the DOJ has used IJs to implement agency policy, even when the IJ tasked with applying that policy disagreed with it.39 Moreover, IJs lack the power to hold DHS attorneys in contempt.40 As a result, IJs are powerless to sanction government attorneys who fail to comply with IJ-issued “orders, deadlines, or rules of decorum” — even when the attorneys’ errors compound the delays most cases already suffer.41
This employee-supervisor dynamic has tangible effects on the day-to-day lives of IJs as well. First, IJs are prohibited from speaking publicly about immigration law, policy, or immigration courts in their personal capacities and must preclear all immigration-related speeches with the DOJ.42 In addition, IJs deal with bureaucracy in a way conventional judges do not, giving rise to a “chain of command” mindset that feels reminiscent of the ones frequently present in federal employee structures rather than those in typical judicial chambers.43 This manifests itself through supervision, among other things: for example, IJs have been required to clock in and out for parts of their terms, indicating a lack of trust in IJs’ ability or willingness to complete their assignments without such supervision.44 The agency is easily able to utilize this supervision to undermine impartiality: supervisors have monitored IJs the agency felt were granting relief in too many cases to try and catch them in the act of minor infractions such as arriving late or leaving early,45 called IJs insubordinate for interpreting directives in certain ways, and even threatened to fire IJs for issuing certain decisions.46
D. Executive Branch Influence over IJ Procedures and Process
The executive branch also has tremendous influence over the pressures IJs face to adjudicate cases quickly. First, the prioritization and implementation of heightened enforcement has contributed to the immense backlog of cases facing immigration judges47 and brought even more noncitizens into a resource-strained immigration court system already struggling under pressures to adjudicate more cases faster.48 But while bringing all these cases in, the executive branch has simultaneously pushed IJs to get more cases out. The existing case backlog has been used as a justification, an excuse, and most often as pretext for subjecting IJs to various policies ostensibly designed to increase efficiency.49 In the immigration-adjudication context, however, a bias toward speed is necessarily a bias toward removal.50 As a result, these policies have functionally resulted in increased removal rates.
In 2021, for example, DHS and the DOJ jointly announced the “Dedicated Docket,” a process that expedites immigration proceedings for “recently arrived families.”51 The Dedicated Docket requires IJs to “work generally to issue a decision within 300 days” of the noncitizens’ initial appearance in immigration court and is ostensibly designed to help newly arrived families avoid “languish[ing] in a multi-year backlog.”52 The average asylum case takes nearly four and a half years to adjudicate — as a result, a three-hundred-day goal provides for a highly compressed timeline.53 After implementing this timeline without simultaneously implementing other reforms, such as increasing access to counsel, the Biden Administration has seen ninety-four percent of completed Dedicated Docket cases end in orders of removal.54
In another such policy, AG Sessions required, inter alia, that eighty-five percent of cases involving detained noncitizens be resolved within sixty days, that the same percentage of cases involving nondetained immigrants be resolved within a year, and that ninety-five percent of all individual hearings on the merits should be completed on the initially scheduled date.55
These metrics were criticized as baseless,56 evidence of “micromanagement,”57 and “unprecedented.”58 They were also impossible to meet.59 As a result, they operated as ample pretext for EOIR to fire any judges they wanted to (namely, judges who did not issue decisions in accordance with the Executive’s policy preferences).60
Even before AG Sessions’s quotas, the DOJ regularly sent department-wide emails listing IJs’ case-completion and workload rates, comparing these metrics across judges; these emails did not contain metrics that could conceivably measure accuracy, such as affirmance rates.61 In the same vein, EOIR superiors frequently praised IJs for efficiency but not other important successes, such as adjudicating particularly difficult cases.62 This prioritization of efficiency at the expense of quality is a tale nearly as old as EOIR itself — in 2005, an IJ denied a continuance on the grounds that the case had been pending for more than eight months, the period established by the DOJ as a universal case-completion goal.63 Later, AG Sessions explicitly directed IJs to consider “DHS’s views on [the] motion” and “administrative efficiency” before granting a continuance.64
The concept of “efficiency” has also been inappropriately conflated with that of “speed.” Rigid docketing mandates, for example, interfere with an IJ’s ability to schedule cases efficiently and manage their dockets, which might have as many as 9000 matters.65 In addition, cases are remanded to IJs at incredibly high rates (up to forty percent, depending on the circuit), thus forcing IJs to decide cases multiple times over.66 If well-reasoned decisions and a more careful case-by-case approach are desirable and drive quality decisionmaking, these policies designed for “efficiency” actually make the system more inefficient.67 Taken together, then, these pressures “incentivize judges to issue more orders of deportation, faster, at the risk of losing their jobs.”68
II. Existing Proposals for Structural Reform
This Part surveys the primary proposals for immigration court reform and concludes that, while an Article I immigration court may be the best solution, achieving this goal will likely prove difficult in the short term.69 Therefore, the executive branch should use its authority to implement incremental reforms in the meantime to alleviate both the unsustainable working conditions IJs face and the immense backlog facing our immigration courts.
A. Embracing the Bureaucracy
Some scholars argue that immigration courts have fallen so far from the ideal of true court-like proceedings that the proper reform may be to simply embrace the bureaucracy of it all and forego the veneer of judicial similarity.70 Professor Amit Jain, for example, argues that immigration courts operate much more like “street-level bureaucracies” than courts and should be analyzed — and perhaps formalized — as such.71
A less overtly adversarial, independent bureaucratic system could be better suited to the drastic power disparities between noncitizens and the government.72 Federal judges may give routine bureaucratic decisions less deference than those issued by an immigration “judge” operating with apparent, if not actual, independence.73 Further, embracing the bureaucracy would do away with the misleading symbolism of having immigration cases decided by a seemingly independent court, which helps the average person “stomach the harsh consequences of immigration law” because removal decisions seem grounded in legal and moral reason and therefore appear “legitimate.”74
As long as the government is intent on removing noncitizens from this country and employs a federal agency to pursue that goal, however, removal adjudications will be inherently adversarial. Moreover, while any wrongful deprivation by an executive agency may be harmful, there is perhaps an instinctive recognition that deportation is uniquely violent and a “punishment” that bears greater similarity to criminal penalties than typical agency action.75 A bureaucratic system that overlooks that fact would thus be ill-suited for proceedings that fundamentally require the government to act as an adversary against those attempting to navigate that system. Perhaps more importantly, a bureaucratic removal process may not remedy the ills the current system suffers at all; the “vast majority” of removal orders today are already entered using administrative processes that involve no in-person hearing at all, and those processes receive even less attention than those in the immigration courts.76
Further, the undesirable outcomes Jain ascribes to the façade of independence of immigration courts are largely attributable to the ills described above, not the courts’ lack of independence per se — that is, many of the current problems result from the fact that the symbol of independence is deceptive, not necessarily that the symbol exists. Furthermore, it is unclear how abandoning the pretense of a “court” would disempower DHS attorneys or further empower noncitizens — many of the same obstacles noncitizens currently face (such as language barriers, limited access to counsel, and lack of familiarity with the legal system77) would exist just the same in a more “straightforward” bureaucratic process.
B. The Middle Ground: An Independent Agency
Establishing EOIR as an independent agency — and making IJs ALJs in so doing — presents a middle ground that may be appealing to those who favor a less extreme, but still effective, overhaul of the system.78 This could afford IJs many of the benefits of a nonagency court system without the structural lifting required to establish an external court system: immigration adjudications would be newly independent and thus more insulated from the AG’s prerogatives, IJs would enjoy more substantial removal protections, and the AG would no longer have logistical or budgetary power over the immigration court system.79
But given that “a bureaucracy masquerading as a court exacerbates the flaws of both,”80 this would only partially mitigate the issues facing IJs and would not overcome the structural obstacles to fair adjudications in the current system. Though extracting IJs from the DOJ would free them from the AG’s supervision, independent agencies are not fully insulated from executive influence. On the contrary, a President retains significant soft authority and control over independent agencies’ adjudicatory and other functions.81 Thus, even the most carefully constructed independent agency runs the risk of falling under presidential influence, and it is likely that even an independent agency tasked with adjudicating removal cases would maintain the same “taint” of judicial veneer as the current system.82 Moreover, given that restructuring the nation’s immigration court system would require significant legwork regardless of the ultimate structure, this risk likely renders negligible the benefit of advocating for an agency structure that would afford only a minor overhaul.83
C. An Article I Immigration Court
Transforming the immigration court system into an independent adjudicatory system consistent with Article I of the U.S. Constitution has attracted a growing consensus as the most desirable method of establishing and preserving IJ independence.84 There is less consensus, however, over exactly what that would look like.
Congresswoman Zoe Lofgren has brought this proposal as close to success as it has ever been. On February 3, 2022, Representative Lofgren introduced a landmark bill, the Real Courts, Rule of Law Act,85 to “[e]stablish an independent immigration court” under Article I of the Constitution.86 Under the proposed act, immigration courts would become part of an Article I court system split into trial, appellate, and administrative divisions.87 Trial-level judges would be appointed by the appellate judges and removable only for cause; appellate judges would need to be appointed through presidential nomination and the advice and consent of the Senate.88 Endorsements of the bill from the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association, and the National Association of Immigration Judges (NAIJ) demonstrate general support among parties with vested interests in IJ independence and immigration court reform, bringing the vision of an Article I immigration court closer to reality.89
Structurally, an Article I court may seem functionally similar to an independent agency, as both would be independent adjudicatory bodies within the executive branch. So one might argue that an Article I court would be subject to the same dangers as the independent agency and, indeed, the current system are: that is, an Article I court might appear to be independent while it is still being manipulated by the executive branch. There are, however, significant distinctions between the institutional designs of existing Article I courts and independent adjudicatory agencies (compare, for example, bankruptcy courts with the National Labor Relations Board (NLRB) or the Occupational Safety and Health Review Commission (OSHRC) — the last two are significantly more subject to presidential influence).90 Moreover, there is power in the symbolic differences between the two structures: because an Article I court is likely to be perceived by the public as more independent than an independent agency is, the Executive may be more constrained, for example, in how it can attempt to influence the courts without attracting public pushback.
The mere introduction of a bill does not mean it will become law, of course, and this is perhaps the biggest drawback of the Article I approach: such sweeping reform is likely to be highly controversial in Congress, a body that has historically limited immigrant procedural rights far more frequently than it has expanded them,91 and may take a significant amount of time to pass and implement, if it passes at all.92 In the realm of immigration, this is costly — every day the courts continue to function as is, hundreds of people are denied fair and independently reasoned decisions regarding their immigration statuses. But this does not mean that an Article I court is not worth pursuing; rather, it simply means that reformers should also advocate for reforms that could be implemented more quickly in the meantime. More specifically, the executive branch’s considerable power over IJs and the immigration court system means that the current administration has the power to implement meaningful and necessary reforms in the short term.
III. Intermediate Reform
The smaller disparities between immigration courts and typical courts can be “easily” remedied, in that they would require simple directives rather than systemic overhaul. By using its power over the immigration court system to increase, rather than decrease, the system’s independence, the executive branch could significantly mitigate many of the problems the system faces. For example, requiring judges to issue all decisions as written decisions — and providing them with the resources required to do so — would encourage better-reasoned decisions.93 More resources would also alleviate the issues caused by the overwhelming backlog of cases and chronic underresourcing of the courts, so long as the funding is attached to carefully articulated specifications.94 Ongoing, more comprehensive, and independent training would both better prepare IJs for their jobs and lessen the influence the AG and other DOJ supervisors have over IJs immediately upon hiring.95
Three reforms, in particular, stand out as the most impactful in terms of effectiveness and ease of implementation: for-cause removal, functional contempt power, and more seamless interaction with United States Citizen and Immigration Services (USCIS). Together, these reforms could be implemented by the executive branch quickly, with little issue, and would insulate IJs from executive branch influence while also contributing to greater efficiency in the immigration court system.
A. Removal Protections
Perhaps most clearly, requiring that IJs may be removed only for cause would ameliorate numerous pressures IJs currently experience, given that “[t]he threat of at-will removal . . . is a potent stick for ensuring that [an adjudicator] does the bidding of the removing official.”96 Requiring a good-cause finding by an AG-designee before removal would allow IJs to adjudicate cases without the currently ever-present fear and pressure of losing their jobs; as a result, IJs would feel freer to issue decisions based on the merits of each case, not the sitting administration’s policy preferences. Moreover, any DOJ “soft quotas” and soft pressure would have considerably weaker influence.
What “good cause” means would require careful line drawing, as courts have never defined the term; however, there is general consensus that the term places at least some restrictions on the Executive’s power to remove.97 Still, the Executive generally has discretion over what constitutes “good cause” (and there is some argument that, beyond some abstract limit, the term can mean “whatever the President wants it to mean”);98 therefore, an administration implementing this reform would be wise to define clear parameters for IJ removal. These parameters could take various forms — for example, required investigations if an IJ receives a certain number of credible complaints from the public or the immigration bar, or a certain number of federal court decisions in which federal judges sharply criticize IJ decisionmaking. While a certain amount of line drawing would be required to distinguish, for instance, an IJ who nakedly refuses to follow precedent from an IJ who is simply making decisions independent of the AG, such strictures could be identified and refined through the rulemaking process as practitioners, judges, and other interested parties provide their input. The DOJ may promulgate removal protections either through typical notice-and-comment regulations99 or under the APA exemptions that allow “rules of agency organization, procedure, or practice” and rules that govern matters “relating to agency management or personnel” to forego notice and comment.100
The biggest and most obvious challenge to this approach is that ALJ for-cause removal protections themselves are legally questionable after Lucia v. SEC,101 in which the Court found that the Securities and Exchange Commission’s ALJs are “inferior officers” under the Appointments Clause and must be hired accordingly.102 It follows, then, that the President must have the same discretion to remove ALJs as they do other inferior officers — a discretion that the Court has found unconstitutionally limited by multilayer removal schemes such as the one that governs ALJs.103 In fact, the ALJ removal scheme may become increasingly similar to the IJ removal scheme rather than the other way around.104 But this does not mean that IJ for-cause removal protections are necessarily ill fated — circuits have ruled both ways, and while the Supreme Court may eventually have to decide the fate of for-cause removal protections, it has not yet done so.105 Perhaps mirroring ALJ protections while this question remains open is unwise, but there have been proposals for removal requirements that may allow EOIR to work around the Lucia holding.106 In addition, removal protections are not unprecedented in the non-ALJ world; for example, Equal Employment Opportunity Commission Administrative Judges and NLRB Hearing Officers enjoy removal protections based on their collective-bargaining agreements, as well as “regulations, guidance, and custom.”107
Removal protections are also not all created equal. If removal is a spectrum with at-will removal on one end and ALJ for-cause protections on the other, IJ job protections could exist somewhere in the middle. To prevent any future use of Sessions-esque metrics as pretext for at-will removal, these protections should be carefully designed to hold IJs to a quality standard while closing the door on undue executive influence. The DOJ could do this by, for example, meeting with interested parties and experts — including IJs, the NAIJ, scholars, and DOJ officials — to develop a set of fair performance standards IJs are expected to meet and a removal process that is more involved than simply “at-will” but not so strict as to invite legal trouble. Moreover, the clarity and transparency of the removal scheme is just as important as the substance of the removal protections themselves — fear of sanction, regardless of whether it has ultimately been realized, has proven a strong motivator for IJs to cater to the Executive’s policy preferences. As such, these standards should be promulgated as part of the rule. This would ensure that they are clear, transparent, communicated to all involved, and relatively fixed; that is, their existence and administration should remain consistent across regime changes.
B. Contempt Power
Establishing functional contempt power for IJs would give them greater control over their dockets, leading to both better-adjudicated cases and more efficient case management. IJs have reported that their lack of contempt power often contributes to the infamous sluggishness of immigration hearings; for example, “it is not uncommon for cases to be continued due to private counsel’s failure to appear or be prepared for a hearing, or [DHS attorneys’] failure to follow the Court’s orders.”108 Historically, the contempt power has been viewed as “necessary to the exercise” of the adjudicatory power.109 If a party disobeys a subpoena or other court order, an IJ’s only method of formal recourse is to request the same subpoena from a U.S. district court — a method that IJs seem understandably reluctant to use and that has resulted in a subpoena exactly one time.110 Because attorneys endure no repercussions for their misconduct, they feel no need to curtail it; in fact, some attorneys purposefully prioritize nonimmigration cases over immigration cases because IJs lack contempt power.111 This phenomenon has resulted in immigration courts having higher failure-to-appear rates than does any state or federal court in the country.112
If efficiency and reducing the current case backlog are truly priorities for the executive branch, then contempt power is an obvious mitigation technique, as it would allow IJs to ensure that their cases are being heard and resolved in a timely manner. Though there is some risk IJs unsympathetic to noncitizens would weaponize this power as another mode of hostility towards noncitizens and their attorneys, this risk would be present for any facially neutral mode of giving IJs’ orders more teeth. Rather than foregoing an otherwise useful reform, this concern could be mitigated by ensuring IJ neutrality and quality in other ways —through the other reforms listed in this Part, for example.
Granting IJs this power would be relatively simple and uncontroversial; in fact, the AG has the explicit authority to do it. In 1996, Congress amended the Immigration and Nationality Act to give IJs “authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge’s proper exercise of authority.”113 Though they have occasionally indicated an intention to, no AG in the over twenty-five years since has promulgated any such regulations.114
Some have speculated that this is yet another result of the problematic location of EOIR within the DOJ, in that the refusal to follow through reflects the AG’s reluctance to subject DOJ trial lawyers to discipline by IJs in the same agency.115 Whatever the reason, delay can be justified no longer; the AG has had the authority to put IJs in better control of their dockets for decades. Issuing a straightforward notice-and-comment regulation to do so would be one incremental — but overdue and sorely necessary — step to improving the speed, quality, and legitimacy of our immigration courts.116
C. Integrating USCIS Systems
IJs lack jurisdiction over initial adjudications that go through USCIS, such as visa applications and other USCIS petitions. This problem is exacerbated by the lack of streamlined communication — and, in some cases, any communication whatsoever — between USCIS and EOIR. Benslimane v. Gonzales117 provides a good illustration of the consequences of such a system. In that case, Benslimane submitted an adjustment-of-status request after marrying an American citizen.118 At the same time, his new wife separately submitted a visa petition for him.119 While this was taking place, the government put him in removal proceedings.120 After being told about the visa petition, the IJ gave the government lawyer ninety days to report to the judge the petition’s status.121 Because the petition was being adjudicated by USCIS, the government lawyer did not have any information about the petition.122 The judge then asked Benslimane to file his adjustment-of-status petition — a petition that he had already filed with USCIS over ninety days prior — with the court within sixty days.123 Due to a procedural misunderstanding, Benslimane’s lawyer failed to submit a copy of the petition he had already filed months earlier.124 The IJ ordered Benslimane removed.125
At best, then, these separate adjudicative tracks create a potential for mismatch in scheduling and delay due to avoidable dysfunction. At worst, noncitizens are subject to the emotional turmoil of removal proceedings that may very well turn out to be completely inappropriate, and the immigration court system spends valuable time adjudicating cases it may have no need to hear. When IJs are forced to grant continuances to wait for pending USCIS adjudications, they further exacerbate the delays that many cases already face.126 Moreover, immigration court hearings are sometimes used to adjudicate facts or discretionary factors that overlap with the facts and factors USCIS adjudicates when deciding, for example, whether a marriage is bona fide.127
Improving the interplay between EOIR and USCIS is thus a critical step on the way to greater efficiency and fairer adjudications. One key component of this is opening, improving, and streamlining the channels of communication between the two agencies. On one level, this would prevent the sort of fiasco that occurred in Benslimane; on another, the agencies may be able to consolidate their factfinding processes to adjudicate cases more quickly, especially those that are more straightforward. USCIS is no stranger to collaborating with other agencies; for example, it has continuously worked with law enforcement agencies to enforce immigration law.128 Another component involves granting IJs increased authority. The DOJ could do this unilaterally by, for instance, implementing procedures that require IJs to grant continuances or to administratively close cases that involve pending USCIS adjudications.129 DHS could utilize its prosecutorial discretion to issue guidance (or, in a stronger move, promulgate a notice-and-comment regulation) directing its employees to refrain from bringing people with pending USCIS petitions into removal proceedings. While preventing future administrations from removing certain classes of people may seem to impermissibly restrict presidential prerogative, using notice and comment to codify such action may actually put the administration on stronger legal footing, especially given that the agency would simply be opting not to remove certain people rather than providing them with affirmative benefits.130 Further, framing the regulation in terms of prioritizing efficiency and avoiding duplicative adjudications may lend validity to a regulation that would bind future administrations. The DOJ and DHS could also issue joint regulations geared towards minimizing double adjudications and time wasting, for example by creating an expedited USCIS process for people also in removal proceedings.
D. Soft Reform
Finally, though they may be more vulnerable to changing political whims, soft reforms are critical to establishing and maintaining structural respect for IJs’ independence. This could include EOIR establishing a general culture of respect for IJs as adjudicators, not just employees supervised like any other. The DOJ should work to promote and develop a culture of professionalism, which “springs from a number of sources . . . [including] the training, expertise, and sense of mission shared by the adjudicators.”131 More specifically, this could look like less stringent supervision of IJs’ workdays and caseload management, the termination of “soft quotas” and the interpersonal pressures the agency has put on IJs to decide cases quickly and in certain ways, and the intentional characterization of IJs as impartial adjudicators, not law enforcement employees, at trainings, conferences, and in day-to-day interactions.
The immigration crisis in this country has reached new heights. At the root of this crisis is the placement of our immigration courts inside the DOJ, which subjects IJs to control by the AG and an untenable set of working conditions that render the U.S. immigration court system not an independent adjudicatory system but a prosecutorial one. Because these conditions stem from the very structure of the current administrative state and EOIR’s place within it rather than political pressures alone, any reform short of complete extraction and transformation of EOIR into an Article I immigration court is likely to fall short. While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.