Immigration Law

Immigration court system needs independence from the DOJ, ABA representative says at congressional hearing

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A former chair of the ABA Commission on Immigration testified before Congress Thursday to advocate for the creation of an independent immigration court system. Immigration courts are currently located within the Department of Justice and under the control of the attorney general.

Karen Grisez testified on behalf of the ABA before the U.S. House Judiciary Committee’s Subcommittee on Immigration and Citizenship. During her remarks, she told the subcommittee members the current system lacks “many of the basic structural and procedural safeguards necessary to ensure fair and impartial adjudications, to the detriment of both the government and those who are going through the system.”

Grisez, pro bono counsel in Fried, Frank, Harris, Shriver & Jacobson’s Washington, D.C., office, referred to several “hallmarks of due process”—notice to appear, an opportunity to be heard, a hearing before an impartial tribunal and an opportunity to be represented by counsel—that reveal the system’s flaws.

Respondents’ notices to appear are often mailed out too late to inform them of hearing dates or are sent to their old addresses because change-of-address forms are not timely submitted to the court, Grisez said. The Executive Office for Immigration Review often fails to update its automated telephone line and online portal, where respondents can also check the status of their hearing dates.

Grisez said the opportunity to be heard is controlled by immigration judges, who decide how long a respondent has to find counsel, identify witnesses and obtain corroborating evidence. Judges also determine the length of hearings, which she said means “many asylum applicants, whose cases involve life or death consequences, are allowed only two to four hours to present their complete cases, even when interpretation is required.”

The need for an impartial tribunal may be the most compelling reason for an independent immigration court system, Grisez said.

“The hiring process is completely under the control of the attorney general in a nontransparent process, and the performance of an immigration judge is evaluated not by the quality of their opinions but by how quickly they can complete their cases,” she said.

Grisez added that the opportunity to be represented by counsel is a problem because there is typically no right to appointed counsel in immigration cases and access to legal information is limited.

To address these issues, the ABA decided an Article I court would be the best solution for several reasons, including “independence, fairness and perception of fairness, professionalism and increased efficiency,” she said.

An overhaul of the immigration court system has long been considered

The ABA called for the creation of an independent Article I immigration court in 2010, after releasing a multi-year study on the state of the immigration court system. The association reaffirmed its position in a follow-up study released in 2019.

Grisez pointed out in a written statement provided to the House subcommitee that Article I, Section 8 of the Constitution grants Congress the power to “constitute Tribunals inferior to the supreme Court.” She said it has already used that power to create several specialized courts, including the U.S. Tax Court and U.S. Bankruptcy Court.

She also said the recommendation to replace the current immigration court system with an Article I immigration court is not new. The House of Representatives introduced legislation to change the system in 1999 as well as in several previous years.

Thursday’s congressional hearing also included testimony by Judge Mimi Tsankov, the president of the National Association of Immigration Judges; Elizabeth Stevens, of counsel with Poarch Thompson Law in Salem, Virginia, who spoke on behalf of the Federal Bar Association; and Andrew Arthur, a resident fellow in law and policy for the Center for Immigration Studies in Washington, D.C.

Grisez’s full testimony and written statement can be found here. An ABA press release is here.

See also: “Sweeping reforms are needed for ‘broken’ immigration system, ABA report finds”

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