By Dylan Abrokwa-Jassor, B.A. Class of 2024
The rights that most Americans expect when entering a courthouse are not protected in immigration court. Rights to due process and fair trials, cornerstones of American judiciaries, have been compromised in the immigration system. In recent years, executive policy has pressured immigration judges to “accelerate their decisions”1 which likely “influenced them to deny requests . . . to examine and present evidence.”2 At their core, these policies restricted components of a hearing that are “essential to a thorough review of a case.”3 While the particular policies described aren’t in effect anymore, the fact that executive policy can have such a gripping effect on the court system contradicts our nation’s foundational principles of an apolitical judicial system. These rushed rulings can result in the separation of families, leaving immigrants to face the same violence, “abuse,”4 and “torture”5 that made them flee their home country in the first place.6 However, the issue is far more complex than just a bad decision on a case or one bad judge. The source of the problem is that the immigration court system is housed in the Department of Justice (DOJ), headed by the powerful U.S. Attorney General who has the ability to dramatically shape the nature of immigration law and policy in whatever biased fashion they choose.
How did we get here?
America’s immigration courts were not always housed under the Department of Justice. There is one critical point in history that fundamentally restructured not only how we treat immigrants in court but how Americans view immigration in general. According to Alison Peck’s The Accidental History of the U.S. Immigration Court, in 1940, President Franklin D. Roosevelt “move[d] the immigration services from the Department of Labor into the Department of Justice.”7 At the time, there was growing suspicion about a “Nazi fifth column,”8 the idea that Nazi immigrants would spy on and sabotage U.S. political institutions and create a “state of panic.”9 Roosevelt believed that moving the immigration system into the Department of Justice under the Attorney General would make it easier to catch “a fifth column of German spies,”10 in response to the perceived “national threat.”11 This move wasn’t a golden ticket to safety, and Roosevelt and his advisors fully understood the implications.12 Frances Perkins, the Secretary of Labor and then head of immigration services, Robert H. Jackson, Roosevelt’s Attorney General, and attorneys at the DOJ all advised against the move.13 They all believed that moving “immigration and naturalization services”14 into the DOJ would “associate [immigration] with crime and law enforcement”15 and “could change the understanding of immigration for the country.”16 Their predictions were correct.17
For decades, issues concerning immigration were swept under the rug, but 9/11 radically reshaped the way Americans thought about “foreign nationals,”18 prejudicially conflating immigration and terrorism.19 Immigration-focused legislation since has largely focused on fears of terrorism and expanding inadmissibility grounds related to terrorism.20 Today, we have reached a point where we are forced to reconcile with the nature of the U.S. Immigration Court. Under the Trump Administration, the immigration court system’s flaws were exposed and exploited by President Donald Trump in a way that was too egregious to ignore. To understand exactly how Trump used the Immigration Court as an extension of his executive powers and agenda, we must first understand the conflicting relationship between the Attorney General (AG), the President, and the Immigration Courts.
The Current State of Immigration Courts
In several fundamental ways, the vision of President Roosevelt’s immigration courts under the watchful eye of law enforcement has not changed. Under the current framework, immigration courts are part of the Executive Office for Immigration Review, a division of the Department of Justice.21 There are currently over fifty immigration courts across the country, located in large urban areas (such as New York City and Arlington) or co-located with immigration detention centers (such as Stewart, Georgia).22 Immigration courts can have as few as three judges or more than twenty-five.23
Immigration Court Cases
Immigration Court hearings are cases heard before the court that deal with “foreign born nationals” who “violate immigration law.”24 These hearings are “civil administrative hearings,”25 not to be confused with criminal hearings which involve parties who commit more serious offenses “against the state”26 that lead to “fines”27 and “jail time.”28 Common immigration law violations charged in immigration court include “entering the U.S. illegally”29 and “visa overstay.”30 Immigration judges then decide whether the immigrants (called “respondents” in court) should be “removed from the United States”31 (commonly known as deportation) or “granted relief or protection from removal,”32 such as asylum,33 Withholding of Removal,34 or Cancellation of Removal.35 Because immigration courts are civil proceedings, immigrants do not have a right to a government-provided attorney,36 and their cases “cannot be ruled on by a jury.”37 Oftentimes immigrants cannot afford legal counsel,38 leaving them susceptible to violations of their rights by immigration judges who aren’t actually judges at all.
Although they are referred to as “judges,” immigration judges are employees of the Executive Branch.39 Immigration judges are hired, and able to be fired, by the U.S. Attorney General “should they make decisions unaligned with the goals of the [AG].”40Additionally, these “immigration judges” are not required to possess any immigration law experience.41 These federal employees are not independent arbiters of justice. Immigration judges are simply required to “act as the Attorney General’s delegates”42 and “perform such duties as the Attorney General prescribes.”43
The Attorney General
The Attorney General exercises incredible control over the immigration court system. Because immigration judges are employees of the Department of Justice, the AG has the ability to interfere with immigration judges’ control of their court by “reassign[ing] case dockets”44 to “align”45 with the political priorities of the Executive Administration.46 This severely “undermines a respondent’s right to a fair hearing.”47 Case dockets are essentially an ordered list of cases to be heard by a judge, and the Attorney General has the power to “manipulate the docket to predetermine case outcomes”48 to achieve a policy goal.49 This type of power is a clear hindrance of a judge’s ability to exercise “independence”50 over their own courtroom. Alongside docket shuffling, Attorneys General in previous Administrations have also threatened to “punish–and even fire judges”51 for failing to meet “enforcement-driven case quotas,”52 which makes it difficult for a judge to prioritize due process of law.53 The hiring practices are also highly “politicized”54 with previous Attorneys General “stacking the courts”55 with “appointees who are biased toward enforcement”56 and “have histories of poor judicial conduct”57 despite the fact that unbiased judges should be a hallmark of our nation’s courts.
According to the Immigration and Nationality Act, “[d]ecisions of the Attorney General ‘with respect to all questions of law’ are controlling unless overturned by a federal court.”58 This is an incredible amount of power for the AG to have and use at their discretion. One of the ways that Attorneys General have used this authority is through the “referral and review” power.59 Referral and review allows the Attorney General to “reach into the immigration court system . . . and overrule decisions made by the Board of Immigration Appeals” meaning they can “[set] new [immigration] policy,” again, in accordance with the sitting president’s political goals.60 This makes it possible not only for the AG to interfere with judicial processes but to increase or decrease the protections of immigrants in courts however they see fit.61 Additionally, referral and review has been used by President Trump’s Attorney General more times than any other Attorney General since 1953.
As both a representative of the President and the chief law enforcement officer, Attorneys General oftentimes prioritize the current political agenda, as demonstrated by the referral and review power. These priorities generally result in an emphasis on prosecuting and deporting immigrants instead of focusing on impartial legal decision-making. Politics do not belong in any court, especially those dealing with such a polarizing topic as immigration. This structure severely compromises the integrity of the Immigration Court and blatantly undermines the Attorney General’s “constitutional and statutory obligation to create an immigration court system that works fairly and uniformly.”63 Thus, immigration policy, which impacts millions of lives, is in a constant “zigzag”64 of change with a “Republican zig to every Democrat zag.”65 Even in cases with substantially similar facts and evidence, rulings can be vastly different because of the different political aims of Presidential Administrations.66 The constant restriction and expansion of immigrants’ rights make it nearly impossible to make substantial, longstanding change in immigrant communities across America.
How can we fix this?
We need a large-scale solution to re-establish the integrity of the Immigration Court. On February 3, 2022, U.S. Congresswoman Zoe Lofgren (CA-19) introduced a bill that could do just that: H.R. 6577, The Real Courts, Rule of Law Act of 2022. This bill would “transition the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution.”67 This means the immigration courts would be completely independent of the Department of Justice and the Attorney General’s political efforts. Lofgren outlines a system with a “trial division,” an “appellate division” and an “administrative division.”68 Appeals judges would be appointed by the “President, by and with the advice and consent of the Senate” and trial judges would be appointed by appeals judges.69 The appellate division would be in charge of hearing appeals of cases from the trial division setting “rules and procedures for the Immigration Courts.”70 The administrative division would be tasked with “implementing and administering operational rules, policies, and procedures of the Immigration Courts” and the trial division would be tasked with the initial court proceedings.71
The administrative council would also be responsible for determining the number and geographic location of these new courts to “provide for the expeditious and effective administration of justice.”72 Additionally, comprehensive surveys that “evaluate local conditions” and include “recommendations from the public” would be administered “every 4 years” to help guide administrative decisions as to where courts must be located to best serve immigrant communities. This particular provision could be extremely impactful for immigrants in Hampton Roads. There is only one immigration court in the entire state of Virginia, located in Arlington. When traveling for hearings, immigrants have to deal with transportation costs and taking time off of work (which most low-paid workers cannot afford to do) before they even step into the courtroom where their fate in this country is decided. This addition could help ensure easier access to immigration courts by prioritizing courts where immigrants need them most. However, on the face of the bill, it’s not clear exactly where the courts would be. Only time will tell.
Lofgren included specific qualifications for all immigration judges–again, a significant step up from the current system in which immigration judges are not required to have any experience with immigration law. Lofgren’s qualifications include but are not limited to “possess[ing] . . . outstanding legal ability and competence,” “demonstrat[ing] commitment to equal justice under the law,” “be[ing] qualified to conduct fair and impartial hearing that are consistent with due process,” and having “prior legal experience in immigration law.”73 Lofgren’s standards for the new judges far exceed current standards. Independent courts coupled with these qualifications would provide for more competent and experienced judges helping address the issue of negligent and abusive judges.74 Highly skilled and qualified judges mean cases would be carefully considered and decided with the rights of immigrants in mind, not politics. Lofgren does not stop the qualifications there. Judges would be required to meet “continuing education requirements” determined by the administrative council to ensure their competence and judicial ability.75 These requirements more adequately reflect America’s promise of equal justice in the courts.
In terms of removal from the bench, appeals judges “ may be removed from office by the President” and trial judges “may be removed by the appellate division.”76 The new judges can be removed on the grounds of “incapacity,” “misconduct,” and “neglect of duty” which would adequately hold judges accountable for the mistreatment of immigrants and their legal counsel in court.77 Additionally, judges who are being removed have the right to be present at the removal hearing and “rebut such allegations” so as to not remove judges without allowing them to defend themselves.78 These grounds would further bolster the credibility of the new judges and punish judges who do not prioritize fair trials and due process for immigrants.
What are the arguments against independent immigration courts?
Funding is one of the main issues cited by opponents of an independent immigration court. Former immigration judge Art Arthur argues that yanking the court out of the DOJ would be “complicated and costly,”79 and could “leave the system fighting for funding”80 in an “increasingly divided”81 Congress. This is a rational fear given the lack of compassion and effort on both sides of the political aisle when it comes to immigration. Adequate funding is needed to ensure the courts run smoothly and efficiently while reaching as many immigrant communities as needed. Without congressional support, the new courts would essentially be “starv[ed]” and “orphaned,” potentially worsening the situation.82
How can H.R. 6577 be improved?
Currently, the immigration court faces a backlog of 1.7 million cases.83 It’s important to recognize that a portion of the cases clogging the system are for very old “low-level immigration violations.”84 Cases concerning those who “overstayed a visa” or “entered the country illegally” many years ago are not worth the court’s time or resources85 and trying to process and decide each minor offense is not realistic.86 It burdens the system and it unnecessarily disrupts and uproots immigrant communities.87 The Justice Department and Executive Office for Immigration have the power to “remove non-priority cases from consideration” and it is imperative that they do so before establishing the new courts.88 This would give the new courts something of a fresh start and allow for a more critical focus on more pressing offenses while chipping away at the backlog. However, it is necessary to understand that this critique goes beyond the scope of independent immigration courts and does not necessarily pertain to the issues referenced in the bill.
H.R. 6577 details the qualifications of immigration judges but the language of the qualifications can be vague. One qualification that I believe should be one of the more specific and emphasized aspects of the bill is the requirement that immigration judges have “prior legal experience in immigration law.”89 I believe that the bill should require immigration judges to have at least three to five years of experience as an immigration attorney representing immigrants in removal proceedings (not just experience representing the government). This would allow for all judges to have personal experience with navigating the immigration system from an immigrant’s perspective. Most of the powerful people in the current immigration system rule from a position and career history of law enforcement,90 which makes many of them more removed from the issues and general livelihoods of immigrants. This change would allow for the beginning of a cultural and attitude shift on immigration from crime to compassion. Still, the bill’s qualifications greatly exceed current standards and provide an invaluable stepping stone in the fight for immigrants’ rights.
How does this bill affect immigrants?
The effects of H.R. 6577 on immigrants in courts are tremendous but they extend past the courtroom. It is the beginning of a reckoning with this nation’s distorted perception of the relationship between immigrants and crime. Independent immigration courts would give America a chance to honor its promise of equal protection under the law for all people. A chance to re-establish the integrity of the immigration court. Here at William & Mary, this bill affects countless students, staff, and faculty directly and indirectly. Several members of the William & Mary community depend on this bill for fairer decisions for themselves and their loved ones. They depend on competent judges who can treat their situation with unpressured care and compassion. They depend on a court system that is dedicated to serving them, not getting rid of them. We all depend on immigrants as teachers, lawyers, doctors, business owners–as neighbors, and friends. These are the rights that immigrants deserve. Support H.R. 6577.
 Greg Chen. “Why America Needs an Independent Immigration Court System Statement of the American Immigration Lawyers Association.” American Immigration Lawyers Association, January 20, 2022. AILA Doc. No. 22011901
 Human Rights Watch, Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse (2020), https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and.
Peck, Alison. The Accidental History of the U.S. Immigration Courts. War, Fear, and the Roots of Dysfunction. University of California Press, 2021.
Roosevelt’s Address on the “Fifth Column.” USHMM, May 26,1940. https://perspectives.ushmm.org/item/roosevelts-address-on-the-fifth-column
 Peck, supra note 7, at 14.
Isabela Dias. “The Original Sin of America’s Broken Immigration Courts.” Mother Jones, April 28, 2021. https://www.motherjones.com/politics/2021/04/the-original-sin-of-americas-broken-immigration-courts.
 Peck, supra note 4, at 168.
 Dias, supra note 8.
Isabela Dias. “The Original Sin of America’s Broken Immigration Courts.” Mother Jones, April 28, 2021. https://www.motherjones.com/politics/2021/04/the-original-sin-of-americas-broken-immigration-courts.
 Shoba Sivaprasad Wadhia et al. “The 9/11 Effect and its Legacy on U.S. Immigration Laws.” Penn State Law, September 16, 2011. https://pennstatelaw.psu.edu/_file/Immigrants/9_11_Effect_Online_Publication.pdf.
 The REAL ID Act of 2005: Summary of Analysis and Provisions, American Immigration Lawyers Association (2005), https://www.aila.org/infonet/the-real-id-act-of-2005-summary-and-analysis.
 Immigration Law: Administrative Structure, Northeastern University School of Law Library Guides, https://lawlibraryguides.neu.edu/c.php?g=628618&p=4387300.
 EOIR Immigration Court Listing, U.S. Dep’t of Justice, https://www.justice.gov/eoir/eoir-immigration-court-listing.
U.S. Department of Justice “Observing Immigration Court Hearings.” Executive Office for Immigration Review, January 2018. https://www.justice.gov/eoir/page/file/941991/download#:~:text=Immigration%20court%20hearings%20are%20civil,charged%20with%20violating%20immigration%20law.
 “How Are Immigration Courts Different than Regular Courts.” STERN Law, November 16, 2017. https://sternlawfirm.us/blog/how-are-immigration-courts-different-than-regular-courts.
 “Immigration Law Violations.” Martinian & Associates Inc. Accessed April 13, 2022. https://www.martinianlaw.com/criminal-defense/federal-crimes/immigration-law-violations.
 U.S. Dep’t of Justice, supra note 24.
 U.S. Dep’t of Justice, supra note 22.
 “The Difference between Asylum and Withholding of Removal.” Accessed April 13, 2022. https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf.
 “Cancellation of Removal.” Legal Information Institute. Accessed April 13, 2022. https://www.law.cornell.edu/wex/cancellation_of_removal#:~:text=Cancellation%20of%20removal%20is%20an,provided%20certain%20conditions%20are%20met.
 In the Immigration and Nationality Act, immigrants specifically have the “privilege” of being represented by an attorney “at no expense to the government.” 8 U.S.C. § 1362.
 Stern, supra note 26.
New York Immigrant Representation Study, Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (2012), https://justicecorps.org/app/uploads/2020/06/New-York-Immigrant-Representation-Study-I-NYIRS-Steering-Committee-1.pdf. See also Unrepresented Families Seeking Asylum on “Dedicated Docket” Ordered Deported by Immigration Courts, Transaction Records
“Immigration Judge.” Ballotpedia. Accessed April 7, 2022. https://ballotpedia.org/Immigration_judge#:~:text=Though%20IJs%20and%20other%20types,IJs%20as%20of%20May%202019.
Asad, Asad L. “Why Noncitizens Won’t Find Justice in Immigration Court > Center for the Study of Immigrant Integration (CSII) at USC > USC Dana and David Dornsife College of Letters, Arts and Sciences.” > Center for the Study of Immigrant Integration (CSII) at USC > USC Dana and David Dornsife College of Letters, Arts and Sciences. Accessed April 7, 2022. https://dornsife.usc.edu/csii/blog-noncitizens-in-immigration-court/.
Nolan Rappaport, opinion contributor. “No Experience Required: US Hiring Immigration Judges Who Don’t Have Any Immigration Law Experience.” The Hill. The Hill, February 3, 2020. https://thehill.com/opinion/immigration/481152-us-hiring-immigration-judges-who-dont-have-any-immigration-law-experience.
 “The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.” Southern Poverty Law Center, June 25, 2019. https://www.splcenter.org/20190625/attorney-generals-judges-how-us-immigration-courts-became-deportation-tool.
 Refugees International. “Congress Must Establish an Independent Immigration Court.” Refugees International, February 18, 2020. https://www.refugeesinternational.org/reports/2020/2/17/congress-must-establish-an-independent-immigration-court.
 Tess Hellgren et al.”The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation.” Innovation law lab, June 2019. https://innovationlawlab.org/media/COM_PolicyReport_The-Attorney-Generals-Judges_FINAL.pdf
 Southern Poverty Law Center, supra note 42.
 Camille J. Mackler. “To Fix the Immigration System, We Need to Start with Immigration Courts.” Just Security, April 6, 2021. https://www.justsecurity.org/75675/to-fix-the-immigration-system-we-need-to-start-with-immigration-courts/.
 Kids in Need of Defense, Chapter 3: The Immigration Court System, https://supportkind.org/wp-content/uploads/2015/04/Chapter-3-The-Immigration-Court-System.pdf. See 8 U.S.C. § 1103(a)(1).
 Michelle Mittlestadt. “Expanded Use under Trump of the Attorney General’s Immigration Power Spotlights Longstanding Concerns.” migrationpolicy.org, January 26, 2021. https://www.migrationpolicy.org/news/expanded-trump-attorney-general-immigration-power.
Sarah Pierce. “Obscure but Powerful: Shaping U.S … – Migrationpolicy.org.” Accessed April 7, 2022. https://www.migrationpolicy.org/sites/default/files/publications/rethinking-attorney-general-referral-review_final.pdf.
 Hellgren, supra note 50.
 Mimi Tsankov, The Immigration Court: Zigzagging on the Road to Judicial Independence, University of Colorado Law Review, March 18, 2022. https://lawreview.colorado.edu/printed/the-immigration-court-zigzagging-on-the-road-to-judicial-independence/.
 Pierce, supra note 62.
“Lofgren Introduces Landmark Legislation to Reform the U.S. Immigration Court System.” Congresswoman Zoe Lofgren, February 3, 2022. https://lofgren.house.gov/media/press-releases/lofgren-introduces-landmark-legislation-reform-us-immigration-court-system.
Real Courts Rule of Law Act of 2022, H.R. 6577, 117th Cong. (2022).
 See, e.g., Sarah H. Paoletti, Relentless Pursuits: Reflections of an Immigration and Human Rights Clinician on the Past Four Years, 27 Wm. & Mary J. Race, Gender, & Social Justice 121 (2020), https://scholarship.law.wm.edu/wmjowl/vol27/iss1/5
 Lofgren, supra note 69.
 Andrew Arthur, “Testimony to the Subcommittee on Border and Immigration.” United States Senate, April 18, 2022. https://www.judiciary.senate.gov/imo/media/doc/04-18-18%20Arthur%20Testimony.pdf
 Monyak, Suzanne. “Congress Mulls Independent Immigration Courts as Backlog Soars.” Roll Call, January 19, 2022. https://rollcall.com/2022/01/19/congress-mulls-independent-immigration-courts-as-backlog-soars/.
 “Immigration Court Backlog Tool.” Immigration Court backlog tool: Pending cases and length of wait in Immigration Courts. Accessed April 14, 2022. https://trac.syr.edu/phptools/immigration/court_backlog/.
 “Immigration Courts Aren’t Real Courts. Time to Change That.” The New York Times. The New York Times, May 8, 2021. https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html.
 DHS Beings Implementation of Immigration Enforcement Priorities, Department of Homeland Security (Nov. 29, 2021), https://www.dhs.gov/news/2021/11/29/dhs-begins-implementation-immigration-enforcement-priorities (quoting Secretary Mayokas, “DHS will carry out our mission to safeguard our country justly and humanely. In making our enforcement decisions, we will focus our efforts on the greatest threats while also recognizing that the majority of undocumented noncitizens, who have been here for many years and who have contributed positively to our country’s well-being, are not priorities for removal”).
 AILA and Cardozo Law School Provide Recommendations for Removing Non-Priority Cases from the Immigration Court Backlog, American Immigration Lawyers Association (Feb. 11, 2021), https://www.aila.org/infonet/remove-non-priority-cases.
Lofgren, supra note 67.
 Press Release, Department of Justice, Executive Office for Immigration Review to Swear in 28 Immigration Judges, Bringing Judge Corps to Highest Level in History (Dec. 20, 2019), https://www.justice.gov/opa/pr/executive-office-immigration-review-swear-28-immigration-judges-bringing-judge-corps-highest.