No experience required: US hiring immigration judges who don't have any immigration law experience
By Nolan Rappaport

© iStock

The House Subcommittee on Immigration and Citizenship recently held a hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” Three of the four witnesses testified that there has been an increase in political interference which has resulted in a lack of judicial independence, and this has eroded due process.

Their solution is to transfer the functions of the immigration court from the Department of Justice (DOJ) to an independent Article I court, which is a court created by Congress pursuant to Article I of the Constitution.

The immigration court needs more resources and has management problems, but there are good reasons for keeping it in the Executive branch. The real threat to due process, moreover, is not political interference, but hiring judges who don’t have any immigration law experience.

Article 1 court

The president of the National Association of Immigration Judges, Judge Ashley Tabaddor, testified that when Congress established the Department of Homeland Security (DHS), it moved the Immigration and Naturalization Service (INS) to DHS and kept the immigration court at DOJ to insulate it from enforcement influences.

Leaving the immigration court under the authority of the nation’s chief federal prosecutor, the U.S. Attorney General, was not an effective way to insulate it from enforcement influences, she suggested.

Judge Tabaddor claimed that, “the will of Congress cannot be carried out by a court located within DOJ.”

But keeping the Attorney General in charge of immigration law adjudications is the will of Congress. According to the Congressional Research Service, the Attorney General has had statutory authority to interpret and adjudicate immigration law for decades. The most general statement of this authority can be found in section 103(a)(1) of the Immigration and Nationality Act of 1952 (INA).


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 or at