A New Bill Would Move Immigration Judges to the Judiciary, Protecting Them from Political Interference

House Democrats on Thursday introduced a bill that would move the nation’s immigration courts out from under the Justice Department and into the federal judiciary, a reform that immigration judges say will help protect them from political interference.

Rep. Zoe Lofgren, D-Calif., introduced the Real Courts, Rule of Law Act (H.R. 6577) to move the functions currently performed by the Executive Office of Immigration Review into a new court system in the judicial branch, akin to the U.S. Tax Court. The president would be responsible for appointing appeals judges subject to Senate confirmation to 15-year terms within the new court system, and those appeals judges would in turn appoint trial judges.

The transition to the new system would take place over the course of four years, and current immigration judges would be eligible for appointment to positions in the new court system.

“A hallmark of our system of democracy and the rule of law is an independent judiciary,” Lofgren said in a statement. “Our immigration court system will never be effective as long as it is housed under the Department of Justice. After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair.”

For years, immigration judges have bemoaned that the see-saw of policies from changing presidential administrations has negatively impacted their ability to hear cases fairly. The Trump administration, for instance, instituted a controversial quota system, requiring judges to process 700 cases per year despite a massive uptick in cases due to the “zero tolerance” crackdown on illegal border crossings, as well as a gag order barring immigration judges from speaking publicly about immigration policy.

The previous administration also proposed regulations that would grant a political appointee at the Executive Office of Immigration Review the authority to overrule career immigration judges’ decisions.

The National Association of Immigration Judges, which represents judges at the Executive Office of Immigration Review, remains mired in litigation over the gag order, as well as fighting an effort by the Trump Justice Department to declare immigration judges management officials, effectively busting the labor organization. The latter case was rekindled last month by the Federal Labor Relations Authority, which remains under Republican control, despite the fact that the current leadership of the department has resumed voluntary recognition of the union and asked the FLRA to reverse its prior decision on the matter.

Mimi Tsankov, president of the judges union, said the new bill not only would help ensure her members’ judicial independence and immigrants’ due process rights, but it could also realize a number of improvements to the immigration review process.

“With the case backlog now standing at 1.6 million cases, an Article I immigration court will ensure greater judicial independence, cut a bloated bureaucratic structure, allow for more effective case management and reduce reliance on outdated technologies,” Tsankov said. “The immigration courts are drowning under the weight of politically motivated and shifting priorities. With this new structure, modeled on other federal courts, immigration hearings will be fairer and more efficient, free from the political pressures that currently permeate the immigration adjudication system.”