Rishi P. Oza
By Rishi P. Oza
The Trump Administration’s push to ramp up deportation has thus far been a mixed record, although the Administration is going through great lengths to publicize its deportation efforts. This push continues to highlight the ridiculous idea that the Immigration Courts are, in fact, courts – they are not.
The Executive Office of Immigration Review (EOIR), a branch of the US Department of Justice, is an executive branch agency just like US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) and is not an independent court system housed under Article I of the US Constitution.
This makes the court system dysfunctional and antithetical to our nation’s basic idea of justice, equality and separation of powers.
The structure of the Immigration Courts is relatively unique. The court system, as thought of by the public at-large, is an independent and co-equal branch of government with the legislature (i.e. Congress) and the executive (i.e. President). As a co-equal branch, the courts are designed to function without having undue influence from these other branches and capable of making decisions that are fair and just. As such, when a regular individual walks into her local US District Court, she can be assured that the government attorney (employed by the US Department of Justice, which is part of the executive branch) does not hold any sway over the court itself and cannot direct any particular outcome over the proceedings.
Herein lies the problem with the Immigration Courts, given its place as a subagency of the US Department of Justice. In an immigration court proceeding, the government attorney represents the US Department of Homeland Security, an agency that is controlled by the President; since both the DOJ and DHS are both executive branch agencies, under the direct control of the President, immigration judges have a clear incentive to avoid bucking the whims of the President.
The Trump Administration has repeatedly removed immigration judges that it sees as insufficiently loyal to its aim of maximizing deportations, which as a result, bends the purpose of the court from the fair and even-handed application of the law. As a practitioner, I have no doubt that many of the individuals that continue to occupy the role of immigration judge or appeals court judge continue to have high standards of jurisprudence and observation of law, but the perception of impropriety corrodes the fundamental principle that justice is blind and is not tilted towards one party (the government) over another (the foreign national).
To be clear, this characteristic is hardly the fault of the current administration. Various court advocates, including the Federal Bar Association, have long taken up the cause of removing the immigration courts from the US Department of Justice and moving them into the Article I federal courts system, as a way of ensuring judicial integrity free of interference of either Congress or the President. However, such a reorganization requires Congressional action and likely acquiescence from the Executive Branch, neither of which are likely.
The Executive has no incentive to give up power over the court system, as it can implement immigration policy through agency action. Under President Biden, DHS prosecutors and DOJ Immigration Judges dismissed thousands of cases against foreign nationals that were in the United States unlawfully but were considered low enforcement priorities. Similarly, under President Trump, these same agencies have swung 180º in the opposite direction, now seeking to speed individuals through the deportation process, sometimes with rather sad results.
Again, as a practitioner, this isn’t an indictment on specific individuals, as my experience with the court system has shown me that many DOJ and DHS employees have always operated with integrity and honesty. But the idea that a single individual (i.e. President) can be judge, jury and executioner is fundamentally anti-American and fails to observe the best standards that our nation is built upon. While Trump’s willingness to push both DHS and DOJ to implement his aggressive deportation agenda is entirely within his prerogative as the President, the ability to do so does not mean that it should be done.
Our American system of government often focuses on limiting the use of power by any singular entity – the willingness of Congress to abdicate its role as a co-equal branch of government has been years in the making but leaves us open to Executive branch abuses. Removing immigration courts from the executive would at minimum permit the public to realize that justice isn’t just lip service relegated to academic papers or history books, but a real concept that applies to all of us. Doing so would uphold our most cherished of traditions, while avoiding the current farce that the immigration courts are actually courts; until then, immigration judges will simply be first cousins to DHS prosecutors, while Lady Justice remains an afterthought.
Rishi P Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com
