The American Bar Association (ABA) concluded in a recent report on "Reforming the Immigration System" that the immigration courts are facing an existential crisis. They are irredeemably dysfunctional and on the brink of collapse.

The number of cases pending before the immigration courts has increased to unprecedented levels. The backlog and increased wait times for a hearing are negatively impacting the fairness and effectiveness of the immigration system. People with valid persecution claims have to wait years to be granted asylum, and individuals with non-meritorious claims are allowed to remain in the country for lengthy periods of time.

Moreover, judicial independence has been called into question by politicized hiring practices and the adoption of policies that undermine immigration judges’ ability to perform their role as neutral arbitrators.

According to the ABA, the only way to resolve these issues is to transfer the immigration court functions to a newly-created Article I court system. This would take immigration adjudications out of the executive Branch where they are subject to political influence, and put them in the judicial branch where they would be handled by federal court judges.

The U.S. Tax Court is an example of an Article 1 court system.

This is not a new idea. Thirty-eight years ago, the Select Commission on Immigration and Refugee Policy recommended the creation of an Article I immigration court, and former House Judiciary counsel Peter Levinson made the same recommendation in his law review article, "Specialized Court for Immigration Hearings and Appeals."

Jeffrey Chase described efforts to make it happen since then in a lecture he gave on immigration court issues recently at Cornell Law School.

Frankly, the fact that it still hasn't happened makes me doubt that it ever will.

The backlog crisis

The backlog is on the verge of becoming so large that the government may have to suspend asylum hearings until it can be brought under control.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1
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