The convoluted framework of removal proceedings reveals the perplexing structure of the immigration court, which is patently unconstitutional in its current form.
The immigration court is a federal “executive court,” similar to a trial court but not quite. Once a foreign national seeks to challenge a finding of removability by the Department of Homeland Security, the matter is “referred” to an immigration court, as it remains an “administrative proceeding.” If a foreign national is ordered for removal by the immigration court, he or she can appeal to the Board of Immigration Appeals (BIA), which serves as the appellate court.
Both courts are under the auspices of the Executive Office for Immigration Review (EOIR), an arm of the U.S. Department of Justice. Through its immigration judges, the Justice Department enjoys the consolidated power of being both the prosecutor and the judge. Immigration judges (IJs) are attorneys appointed by the U.S. Attorney General to act as administrative judges who, although they wear robes and sit in formal courtrooms, are subject to the powers of the Justice Department that deliberately deports immigrants. In reality, and much to their dismay, foreign nationals find themselves seeking relief from removal before judges who are perceived to be suffering from improper influences or favoring the government.1
This structural anomaly leads to a severe constitutional defect of the immigration court. Despite its focus on “administrative removal,” the immigration court bears the quasi-judicial task of deporting individuals, which often results in deprivation of liberty without due process of law. While in removal proceedings, some foreign nationals “may” face indefinite mandatory detention without bail if removal from the country is reasonably foreseeable. Zadvydas v. Davis, 533 U.S. 678 (2001). With or without detention, the specific risks of removal proceedings remain clear: arbitrary or unlawful interference with privacy, family, honor, and reputation. Absent exceptionally compelling circumstances, such fundamental individual rights hardly carry any weight in deportation adjudication.2
The more substantive problem lies in the fact that removal proceedings are sui generis—they are neither entirely civil nor entirely criminal in nature. However, by mimicking criminal procedure, the immigration court has become a quasi-criminal court without the constitutional protections attached to it. For example, deportation has become a surrogate for conventional penalties using the provision called “aggravated felony”—a term of art unique to immigration law—which includes petty offenses redefined to meet the threshold of removability. See, 8 U.S.C. §1101, et seq. It is incomprehensible, for instance, that petty larceny would warrant expedited removal even though the definition of aggravated felony itself remains unconstitutionally vague. See, Golicov v. Lynch, 837 F.3d 1065, 1075 (C.A.10, 2016). This amounts to a punishment that is cruel and unusual.
What happens after deportation completes the underappreciated tragedy of foreign-born families who, regardless of extensive ties to the United States, are put in perpetual exile or banishment. Once deported, foreign nationals may be subject to a “permanent bar” and may never be able to return to the country (INA §212(a)(9)(C)(i)), leaving behind their U.S. citizen families, careers, and “both property and life, or of all that makes life worth living,” as Justice Brandeis once said about deportation. Ng Fung Ho v. White, 259 U.S. 276 (1922). This grim reality is no less true today: deportees experience poverty, persecution, and in extreme instances, death; or equally worse, they become people without a country. This has brought an indescribable burden to immigration judges and practitioners, and to the nation's conscience at odds with a policy that is in want of a legitimate national security or sovereignty interest.
The call for an independent immigration court comes not only from those who have vested constitutional interests. Those on the other side of the deportation debate3 appeal to a pragmatic approach to a problem that has besieged each of the 58 immigration courts: backlogs. To them, the delays in adjudication cause a failure to deliver prompt administration of our immigration laws, in that their demand for the deportation of removable foreign nationals in an expeditious manner is unmet. Hence, the system works to the advantage of the deportable foreign national who wishes merely to remain in the United States. INS v. Doherty, 502 U.S. 314, 323 (1992). Their constitutional argument is that foreign nationals who are eligible for relief are denied due process if their cases are set far off in the future or they have to endure multiple continuances.
Proponents of this pragmatic approach rely on the June 2017 report4 of the Government Accountability Office, which found that restructuring the current immigration court system, independent of the Department of Justice, would result in an increase in the perceived independence of the court, greater judicial autonomy, improvement in the professionalism or credibility of the immigration court systems workforce, and greater organizational capacity or accountability, among other things.
Those who deny the advantages of an independent immigration court appeal not to reason but to blind imitations of the past. There appears to be no credible argument against moving the immigration court out of the Department of Justice, and it certainly would not be of constitutional import. Until then, we should support the call for an independent immigration court for our work to have any meaning under an anti-immigration regime.
End Notes
1 The National Association of Immigration Judges has called on Congress to emancipate the judges from the Justice Department due to the recent rapid hiring of immigration judges and the imposition of production quotas of 700 cases a year by then-Attorney General Jeff Sessions. (https://www.washingtonpost.com/local/immigration/immigration-judges-union- calls-for-immigration-courts-independent-from-justice-department/2018/09/21/268e06f0-bd1b-11e8-8792- 78719177250f_story.html?utm_term=.b38e8a4fa2ff)
2 Literature on deportation justice includes Daniel Kanstroom's works, as used here. See, Kanstroom, Deportation and Justice: A Constitutional Dialogue, 41 B.C.L. Rev. 771 (2000); The Current Immigration Debate. Boston Bar Association (2012).
3 The Center for Immigrant Studies, for example, submitted an expert testimony to the Senate Subcommittee on Border and Immigration for a hearing entitled "Strengthening and Reforming America's Immigration Court System", April 18, 2018, referenced here.
4 “Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges", GAO-17- 438, Government Accountability Office, June 2017.
