What’s the big deal with this proposed immigration court regulation?

On Sept. 8, the Executive Office for Immigration Review (EOIR), housed within the U.S. Department of Justice, published a Notice of Proposed Rulemaking relating to appellate procedures, decisional finality in proceedings, and administrative closure of cases pending before the immigration courts. 88 Fed. Reg. 62242. For many lawyers, such notices and regulatory changes are merely the ho-hum routine workings of a bureaucratic legal system. This regulation is very different. It explicitly recognizes that speed is not the only measure of court efficiency, and that fairness trumps speed. It empowers judges to use their discretion to manage their dockets. These are crucial sea changes.

The rampant dysfunction and gridlock in all aspects of our nation’s immigration system are well known. But few outside the inner circle of immigration law specialists really understand the causes and consequences on a practical level when stripped of hyperbole and political posturing. Nowhere is that more apparent than in the immigration court system. Because the immigration courts (trial level and appellate) are administrative courts, they lack many of the protections and tools which are taken for granted in judicial courts. Our immigration laws are outdated, inflexible, and impractical, so systemic flaws plague the court system. Since the topic of immigration is the new third rail of politics, efforts to modernize the law are stalemated in Congress. The result: the immigration courts are crippled by hurricane-force political winds which shift in direction with every new administration.

These misunderstood courts often are referred to as deportation courts. They are much more than that. By statute, they are neutral tribunals whose role is to determine if someone is in the U.S. unlawfully, and equally importantly, to assess whether they are entitled to seek one of the many forms of discretionary relief available under the Immigration and Nationality Act. Immigration and Nationality Act of 1952 (as amended), codified at 8 U.S.C. Sections 1101 - 1537. Immigration judges are charged by the act to fully develop the record, and be neutral arbiters.

The stakes for the noncitizens who come before these courts could not be higher. Some cases are virtual death penalty cases, where individuals are seeking protection from removal because they risk life-threatening persecution if forced to return to their homelands. Other cases involve noncitizens who have lived legally in the U.S. since infancy but who face permanent exile from the U.S. due to their past misdeeds or crimes. These decisions profoundly impact more than noncitizens, but also large numbers of U.S. citizens and lawful resident family members, friends and employers.

Immigration judges are soldiering on with over 2.5 million pending cases and an average of over 3,800 cases per judge. Over 60% of the noncitizens in proceedings have no attorney because there is no right to appointed counsel despite the fact that the applicable law has been described as second only to tax law in its complexity.

The immigration courts have reached their breaking point. Immigration judges, as attorney employees of the DOJ, have been at the mercy of successive Attorneys General and short-sighted regulations and administrative precedent. In a misguided effort to increase efficiency, the authority and discretion of immigration judges has been brutally curtailed. The most effective tools of docket management and decisional fairness were revoked by the last administration, fearing that vesting too much discretion in immigration judges would slow the process down. The irony is that the opposite occurred, and backlogs skyrocketed. However, most tragic of all, fairness and due process were compromised.

The history of this regulation began in December 2020 with its original incarnation, 85 Fed. Reg. 81588. That version imposed far-reaching restrictions on longstanding substantive and procedural authorities of immigration judges (trial level and appellate) that included restrictive inflexible briefing schedules and decision-making time frames, as well as prohibitions on valuable docket management tools like administrative closure of cases and severe limitations motions to reopen or remand to correct error or address current developments. The changes were so drastic and implemented so rapidly that they were enjoined in March 2021. Centro Legal de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919 (N.D. Cal. 2021).

The just published proposed regulation is a big deal. It begins with over 30 pages of introductory explanation debunking the misguided justifications for the previous version of this rule. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement is called out. This rule does what is needed: it restores essential tools of docket management and stresses that judges’ authority should be broadly interpreted to allow them to take any action deemed appropriate in the exercise of discretion, so long as it is consistent with the law. These changes are essential to ensuring both due process and efficiency in immigration court proceedings.

Nevertheless, the structural flaw which pervades the immigration court system can only be repaired by Congress. Its vulnerability to political interference must be remedied by removing the immigration courts from the executive branch and establishing a truly independent court system under Article I of the Constitution. This solution is not new or radical. The approach is endorsed by the American Bar Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Lawyers Association, and scores of other prestigious legal organizations. Last year, a bill which would accomplish that end, entitled The Real Courts, Rule of Law Act of 2022 (H.R. 6577), was introduced in Congress. Its passage is crucial. Common sense dictates that the law enforcement agency charged with enforcing the law cannot foster and protect a truly independent court system. This solution should not be viewed as controversial or partisan because the underlying substantive provisions of the immigration act remain unaltered.

The proposed regulation is a giant step in the direction of protecting decisional independence and efficiency, but it does not suffice alone. Our nation’s immigration courts need to embody the essential aspects of American jurisprudence: due process, fairness and justice for all. True justice demands that an independent Article I immigration court be established immediately. That is the ultimate big deal.