I have noticed that this issue is rearing its head again. Beyond time it is finally dealt with.
The Immigration Courts have always been kangaroo courts in the best of times and have been reduced pretty much to the status of an assembly line during the Trump administration. The idea of the DoJ essentially being both prosecutor and judge is just idiotic. The situation is intolerable in every aspect and I support the following reforms.
I would abolish the Executive Office of Immigration Review in the United States Department of Justice and move the immigration courts to the administrative control of the United States Judiciary.
The 69 current Immigration Courts and their incumbent judges would become United States Immigration Courts and their Judges would cease to be administrative law judges but would become Article I United States Immigration Judges.
Judges would serve 15 year terms and would be appointed in the same manner as United States Magistrate Judges, by the United States District Judges of the judicial district in which the United States Immigration Court resides. They would be removable only for cause by the Judges of the District Court or by impeachment and conviction.
Sufficient additional judges would be appointed to handle the backlog and current caseload.
United States Immigration Judges would be paid 92% of the salary of a United States District Judge.
The current Board of Immigration Appeals would be abolished and would be replaced by a United States Court of Immigration Appeals.
The United States Court of Immigration Appeals would have 21 members, paid at the same rate as United States District Judges, appointed by 15 year terms in the same manner as United States Immigration Judges.
The United States Court of Immigration Appeals would hear cases in 3 Judge panels, but could choose to rehear a case en banc.
Appeals from the United States Court of Immigration Appeals, where permitted by statute, would be to the United States Court of Appeals for the Circuit where the case was originally heard by a United States Immigration Court, then to the Supreme Court. However, appeals of factual determinations would be forbidden. Appeals would be limited to matters of law and constitutionality.
I would note that my reforms above would NOT grant any additional review rights to individuals who do not already have it.
For example, individuals subject to expedited removal procedures in the current system would still be subject to the same expedited removal procedures.
Factual denial of asylum claims would still be limited to the same amount of review as exists today.
Basically, I am just moving the existing system out of the Department of Justice to give them more independence. I am not granting immigrants (legal or illegal) any more substantive rights than what they already possess. Nor am I granting them greater access to the courts than what they already possess.
The Article III Judiciary does not gain any more power. They are currently forbidden from reviewing factual determinations of immigration courts and that ban would remain. They would not have more review power than what they have now.
No. Not one single illegal immigrant, or applicant of any kind is entitled to one minute in a court room. Immigration is an administrative function and should be non-reviewable. The reform needed is to take the courts out of it so they can concentrate on things courts should be involved in.
Due process does not automatically mean court. It simply means a process under the law to which they are deemed to be due. SCOTUS has ruled twice now, that the executive branch functions involved in accepting/rejecting asylum seekers is the “process” they are “due”.
My proposals do NOT grant to immigrants (legal or illegal) any NEW substantive rights or causes of action to bring in court. Nor does it grant to them any additional appeals beyond what they already have.
What it DOES do is ensure that the Judge they face is unbiased and not under pressure by the Justice Department to rule in a particular manner or under pressure to fill a deportation quota, which is PRECISELY the case right now with the immigration courts.
I am not granting any new rights or privileges to immigrants. That does not change in the slightest under my proposal.