The immigration court system has crumbled in recent years and stands no chance of addressing the influx of border cases unless Congress breaks it free of government "bureaucracy," according to a spokesperson for the 700 judges nationwide.
The National Association of Immigration Judges President Mimi Tsankov testified before the Senate Judiciary Committee on Wednesday that her peers within the Executive Office for Immigration Review at the Department of Justice agree a major overhaul decoupling the court and government is the only conceivable means of "healing" a crippled court, where the situation has only declined year after year.
ISRAELI INTELLIGENCE RELEASES AUDIO OF HAMAS DISCUSSING 'MISFIRED' HOSPITAL STRIKE: 'IT'S FROM US?'
"Only an independent Article One immigration court can fix the problems that plague the immigration court," Tsankov, a judge of 17 years who is based in Charlotte, North Carolina, said. "It would reduce the backlog because it would eliminate the DOJ bureaucracy."
Immigration judges decide cases based on precedents issued by the Board of Immigration Appeals and the U.S. attorney general and federal courts. When a new attorney general is confirmed by the Senate to oversee the Justice Department, the attorney general has the authority to "essentially rewrite" how parts of immigration policy are interpreted and enforced, Tsankov said.
"Control over the courts has resulted in extreme pendulum swings across subsequent administrations," Tsankov said. "Our judges must navigate their judicial responsibilities on the one hand, and heavy political scrutiny on the other."
That rewriting of how an administration wants to carry out existing immigration laws has led to two problems: opening judges to political pressure for not abiding by one administration's instruction and increasing the likelihood that an immigrant appeals a judge's decision.
"[For] all of the parties that are appearing before us, [it] also creates incentives to appeal unfavorable rulings, because an unfavorable ruling today based on the law, as it stands today, might be more favorable a few years down the road when a new attorney general is appointed," Tsankov, who added that the appeals of decisions further burden the backlog, said.
Tsankov has been an immigration judge during the Biden, Trump, Obama, and Bush administrations, where she has seen each attorney general shift how judges should proceed in cases. It was not a huge issue until the past decade, as the number of new cases due to illegal immigration at the southern border began to increase.
The immigration court backlog doubled during the Trump administration and has since climbed under President Joe Biden to more than 2 million pending cases.
Since Biden took office in January 2021, more than 5 million people have illegally crossed the southern border between ports of entry. More than 2 million people have been apprehended and then released into the United States with a notice to appear in one of the 70 immigration courts nationwide closest to where they are resettling.
In an effort to get to more cases while immigrants were in custody at the border rather than years down the road after being released, the Biden administration has asked judges to serve for a period on the border.
"With the recent high levels of migration at the border related to migrants bypassing the lawful pathways rule, many judges are being pulled from their home court dockets to handle border matters. These special assignments brought on by real need nevertheless wreak havoc on our home court docket," Tsankov said. "The consequence is a ballooning backlog."
Tsankov was temporarily sent to the border town of Laredo, Texas, this past summer to hear cases, which forced her to reschedule for 2027 hearings in North Carolina that were already on the books.
"Each new administration has different docketing priorities. And that shuffling of the docket results in Judges being at one in one administration sent to the border and their whole home court dockets languished for extended periods of time," she said. "It's the docket shuffling and the issue with the changing case law that I think is the most problematic for our court."
Right now, Tsankov can schedule four hearings per day, and the average judge across the 70 courts nationwide has 3,700 cases on their docket.
By pulling the courts out from under the DOJ, the attorney general would no longer have say over the judges, resulting in no more political scrutiny of their decisions and pressure on them, as well as fewer cases likely getting appealed and causing more delays.
Judges would be responsible for managing their own resources and dockets just as federal and state courts do. Moving the immigration courts out from under the DOJ would require an act of Congress but "begin the process of healing this broken system."
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
But plenty more needs to be done, including a mass hiring spree of
Immigration judges are short of law clerk support, interpreters, and legal assistants. Space is also a dire problem at her office, where hallways are filled with "years' worth of paper files" waiting to be scanned.