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The Advocates Welcomes Legislation to Create Independent Immigration Courts

Date: February 7, 2022
Country: United States of America
Type: Press Release
Issues: Court Monitoring , Legal Representation , Migrant Rights

Minneapolis, MN (February 7, 2022)

Media Contact:

Michele Garnett McKenzie
Deputy Director


The Advocates for Human Rights welcomes the introduction of HR 6577, The Real Courts, Rule of Law Act of 2022, which will remove federal immigration courts from the executive branch and place them within the judiciary. United States' immigration policy must meet international human rights standards by doing justice, operating fairly, being free from discrimination, and supporting human dignity. Actors at all levels-from Congress to courtrooms-can and must take steps to prevent and address human rights violations. Creating an independent immigration court is one such step.

The Advocates for Human Rights has documented serious structural concerns endemic to the U.S. immigration court system, drawing on nearly 40 years' experience defending people in immigration court and five years of comprehensive monitoring of detained immigration hearings. While many of the human rights violations that occur in immigration court result from broader failures of the U.S. immigration laws, others are the result of the failure to house the immigration courts within an independent judiciary. The creation of an independent immigration court is an essential step toward ensuring that removal proceedings meet basic standards regarding fair hearings.

Today cases are heard by immigration judges beholden to the same executive branch as the prosecutor in their case, giving rise to an appearance of political interference. Immigration court observers report perceiving immigration judges as "subject to political directives, rather than interpreting law," and that "the system is rigged..." As one observer summed up, "How can judges be impartial with this much pressure? As employees of executive branch, they just can't be impartial."

While perceptions of interference are troubling, actual interference happens. Under the current system, precedential agency decisions can be overturned at will by the Attorney General. Seemingly mundane policies such as case completion quotas, timeline requirements, and docket management practices all impact case outcomes. These can be - and have been - imposed to achieve politically motivated results.

Finally, as an agency subject to politically driven budgeting and appropriations processes, the U.S. immigration courts have been chronically underfunded. This has led to serious violations of fair trial standards. These violations include failure to provide adequate language access to people facing a complex and high-stakes process, docket management practices that deprive people of a fair day in court, and delays that leave people to languish in detention until they give up without a fight.

"Detention and exile deprive people of their liberty, separate people from their families and communities, result in loss of homes and careers, and may mean return to torture, persecution, or other serious human rights violations." said The Advocates' Deputy Director Michele Garnett McKenzie in testimony submitted in a congressional hearing on immigration courts held in January. "Congress must ensure that the system making such weighty decisions provides access to justice and due process protections."

Therefore, The Advocates welcomes the introduction of HR 6577, and calls for its swift passage with full support in Congress. The bill would:

  • Establish an independent immigration court - similar to the U.S. Tax Court - consistent with Article I of the United States Constitution.
  • Ensure that qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.
  • Ensure that the U.S. Immigration Court has adequate resources and support to operate efficiently
  • Improve transparency and accountability in Immigration Court proceedings by requiring publication of all court rules and procedures, as well as precedent decisions and pleadings while protecting confidential information.
  • Improve efficiencies by allowing the Immigration Court to establish its own budget without review by the Executive Branch and empowering immigration judges to control their own dockets and compel agency action
  • Ensure due process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the Court.