Immigration reform: Requests to separate immigration courts and judges from the Justice Department

The United States Department of Justice (DOJ), also known as the Justice Department, is the U.S. federal executive department responsible for the enforcement of the law and administration of justice. The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder.

The United States Department of Justice (DOJ), also known as the Justice Department, is the U.S. federal executive department responsible for the enforcement of the law and administration of justice. The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder.

Immigration Judges and courts are different from most courts because the legal process in immigration is not a function of the Judicial Branch of government, but rather it is part of the Executive Branch, reporting to the U.S. Department of Justice (“DOJ”). According to leaders from the National Association of Immigration Judges (“NAIJ”), this is a significant problem and impediment to doing real justice. As employees of the DOJ Executive Office for Immigration Review, the Immigration Judges who also act as the attorney for the DOJ and must follow orders and policy from the Executive Branch. Recently when President Obama directed Immigration Judges to start hearing newly arrived immigrant children’s cases, solely before their other pending cases, some of those judges started to speak up and state their objections.

Judge Dana Leigh Marks is the president of NAJI and she is speaking out, calling for the separation of immigration courts from the DOJ. In several published articles, Marks highlights the irony in the system where judges and courts are funded and overseen by the agency established to implement and prosecute immigration laws. Marks recently stated, “Our goal is to serve as a neutral court, but paradoxically we are housed in a law enforcement agency.[i]” Further, she highlighted, “There is no other court system in which the government would be allowed to order a total overhaul of the docket, placing particular cases at the top.[ii]

Congress has yet to move forward on comprehensive immigration reform, but if and when they do, these Immigration Judges want separate immigration courts.

The organized union for Immigration Judges was represented at a recent National Press Club event, in part, by Denise Noonan Slavin, the union’s executive vice president. Salvin spoke with Judge Marks and rhetorically asked, “If your gas tank has a leak do you keep filling it up with gas or do you fix it first?[iii]

Not only is the gas tank leaking, as you might say, the line for gas is out the door; many say the underfunding of the current immigration courts is to blame for a massive backlog of 375,000 immigration cases, seen by 227 field judges who hear cases.[iv] Judge Marks is one of those judges and she alone has over 2,400 pending cases. The next case set on Judge Marks’ calendar might be heard three and a half years from its filing date.[v]

Article I of the U.S. Constitution provides for the establishment of courts.

Like the court systems for tax and bankruptcy, immigration courts, independent of the DOJ, could be established under Article I of the Constitution.[vi] While the cost of establishing a new court structure under the Judicial Branch could be significant, the savings of time and resources could make it well worth the investment. Judge Marks suggests, “This would free them (judges) from any control or influence by the Attorney General or Department of Homeland Security.[vii]

Whether comprehensive immigration reform would include new immigration courts is unknown and there have not yet been significant responses from members of Congress on this subject. Meanwhile, it is likely certain that advocates for sensible immigration reform, like Judge Marks, will continue pushing the case to remove the immigration courts and judges from the Executive Branch.

KiKi M. Mosley is an immigration attorney who represents immigration clients and experiences the backlog of cases and troubled system first-hand, and works diligently to share ideas for system reform. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] PBS News hour, the Rundown, Immigration Judges’ union seeks independent court system, by Alicia Caldwell, Associated Press, Aug. 27, 2014.

[ii][ii] See PBS article at FNi

[iii] See PBS article at FNi

[iv] AZcentral, 12 News, Immigration Judges urge removal from Justice jurisdiction, by Erin Kelly, Gannet Washington Bureau, Aug. 27, 201.

[v] See AZCentral article at FNiv

[vi] Power…to constitute tribunals inferior to the Supreme Court. Article I U.S. Constitution.

[vii] The Hill, Let Immigration Judges be judges, by Dana Leigh Marks, May 9, 2013.

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