WASHINGTON, DC, February 3, 2022 – Today, U.S. Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, The Real Courts, Rule of Law Act of 2022, a bill that transitions the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution. The bill will ensure that the immigration courts are administered by qualified, impartial judges; have adequate court resources and support services; are defined by transparency and integrity; and are financially independent. The Real Courts, Rule of Law Act of 2022 is co-sponsored by House Judiciary Committee Chair Jerrold Nadler (NY-10) and Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet, Hank Johnson (GA-04).
An office within the Department of Justice, our nation’s immigration court system – known as the Executive Office for Immigration Review – lacks procedural and structural safeguards to protect it against political influence. Immigration judges are not judicial officers – they are lawyers, appointed by the nation’s top prosecutor, the Attorney General. As employees of the Department of Justice, immigration judges are charged with adjudicating cases in accordance with the policies and priorities of the governing administration. Each Administration – Democratic and Republican – has used the immigration courts as a mechanism to shape immigration policy.
“A hallmark of our system of democracy and the rule of law is an independent judiciary. Our immigration court system will never be effective as long as it is housed under the Department of Justice. After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair,” said Chair Zoe Lofgren. “Congress must act by passing The Real Courts, Rule of Law Act to create an immigration court system independent of the Executive Branch. This structural overhaul will strengthen due process and restore faith in the system by taking politics out of the immigration courts for good.”
“Since its founding, our immigration court system has been mired by political interference from both Democratic and Republican administrations,” said Chair Jerrold Nadler. “Our country needs an immigration court system that can deliver just decisions in accordance with the law, not one that is subject to ever-changing political whims. I’m proud to join Subcommittee Chair Lofgren in introducing the Real Courts, Rule of Law Act, which would establish an independent Article I immigration court system consistent with other judicial institutions across our nation. By moving the court out from under the Department of Justice, this legislation will ensure that our immigration court system can effectively prioritize due process and the rule of law.”
“The creation of an independent immigration court would ensure that our immigration judges are no longer subject to the political whims of any particular administration,” said Chair Hank Johnson. “Our current immigration backlog is approaching 1.6 million cases and lacks procedural and structural safeguards to protect the human beings that make up these cases. By establishing an independent immigration court, this bill will ensure impartiality and transparency when it comes to these life and death decisions and allow these judges to administer justice efficiently and effectively. I’m proud to join Rep. Lofgren in introducing The Real Courts, Rule of Law Act of 2022.”
The Real Courts, Rule of Law Act of 2022 will:
- Establish an independent immigration court – similar to the U.S. Tax Court – consistent with Article I of the United States Constitution. The newly-formed United States Immigration Court will be comprised of a trial division, an appellate division, and an administrative division.
- Ensure that qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.
- Ensure that the United States Immigration Court has adequate resources and support to operate efficiently while giving the Court authority to appoint temporary immigration judges and establish temporary court facilities to ensure the expeditious administration of justice.
- 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 that is unlawfully withheld or unreasonably delayed.
- Strengthen the integrity of immigration court proceedings by giving immigration judges authority to impose civil money penalties for contempt of court.
- Ensure due process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the Court.
The Real Courts, Rule of Law Act of 2022 is supported by the American Bar Association, American Immigration Lawyers Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Council, Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense, National Immigrant Justice Center, National Immigration Law Center, Niskanen Center, and Women’s Refugee Commission.
“The American Bar Association has high regard for the mission and goals of the Justice Department, but we strongly support the creation of an independent Article I immigration court system. It is essential that every judge is free to decide cases based solely on the facts and the law, without external pressure or influence,” said Reginald Turner, President of the American Bar Association (ABA).
“This legislation and the effort to rebuild our immigration court system is welcome indeed. For decades, the deck has been stacked against immigrants. Getting a fair day in court is nearly impossible when the immigration courts are under the authority of the nation’s chief prosecutor: the Attorney General. Regardless of their administration or political party, Attorneys General can abuse the extraordinary power they have over the immigration courts and sacrifice due process for expediency. When that has happened in the past, the most vulnerable people – including asylum seekers, victims of violence, and people deprived of their liberty – have paid a high price. There remains vital work to be done by Congress to reform the immigration law itself—specifically, restoring discretion to immigration judges. But foundational to any fair system is a neutral judge. This bill provides that foundation,” said Jeremy McKinney, President-elect of the American Immigration Lawyers Association (AILA).
“After spending several decades helping develop and advocate for this landmark legislation, the Federal Bar Association commends Chair Lofgren and her colleagues for introducing a bill today that would facilitate a long-lasting solution to separate the politics of immigration enforcement from the needs of immigration adjudication. Having collaborated with a number of other prominent legal associations to get to this historic point, FBA remains committed to ensuring that we improve access to justice and due process for individuals appearing before immigration judges. The Constitution gives Congress the ability to create new federal courts and with a current backlog of 1.6 million cases, it is clear to our members that the time has finally come to fix a broken and ineffective system,” said Anh Le Kremer, President of the Federal Bar Association.
“The NAIJ applauds the House Judiciary leadership for introducing an Article I Immigration Court bill. Chair Lofgren, Chairman Nadler and Chairman Johnson, in introducing this legislation, are rectifying the historical mistake of having an immigration court housed in a law enforcement agency. Given the many problems facing the Immigration Court, Congress’s leadership in removing the court from the Department of Justice is welcome relief, and is a crucial step in restoring due process and court efficiency to our broken system,” said Judge Mimi Tsankov, President of the National Association of Immigration Judges (NAIJ).
On January 20, 2022, the Subcommittee on Immigration and Citizenship held a hearing titled “For the Rule of Law, An Independent Immigration Court.” Click here for the full video, witness testimonies, and supporting documents from that hearing.
On January 29, 2020, the Subcommittee on Immigration and Citizenship held a hearing titled “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” Click here for the full video, witness testimonies, and supporting documents from that hearing.