Bay Area Rep. Zoe Lofgren introduced a bill Thursday to create an independent immigration court system that would no longer be under the U.S. Department of Justice.
Lofgren (D-San Jose) says the American Bar Association is one of many groups that proposed the idea ten years ago.
Lofgren noted that currently there is a backlog of more than 1 million immigration cases and she says an independent immigration court system could be more efficient.
The Real Courts, Rule Of Law Act of 2022 would establish trial, appellate, and administrative divisions, with judges being appointed for limited terms and given the power to control their own schedules which could help prevent continuances and other delays seen with the current system.
"Getting something heard and decided efficiently is cost-effective," said Lofgren.
Lofgren also says separating immigration courts from the DOJ and the U.S. Attorney General, who is a political appointee, could make the process more consistent and fairer.
"You don't want politicians going in and making the decisions when it should be a judicial decision," said Lofgren, "We're trying to create something that would not be susceptible to the vagaries of politics. This ought to be independent, fair, just the law, just the facts."
"We've built in a six-year transition period," said Lofgren, "The judges would not automatically be appointed. You have to be qualified and apply."
Immigrants who are navigating the current system say they hope such a move might help cases get processed more quickly.
Berto Hernandez says he's been in the U.S. since he was 10 years old. He is an immigrant youth coordinator with the California Immigration Youth Justice Alliance and says he was picked up by ICE agents in Southern California in 2019.
For two years, he has been wearing an ankle bracelet as he waits for U.S. Immigration courts to process his case.
"The backlog is so monumental," said Hernandez, "It's crazy that I was released in 2019 and I have only been to court once."
"People should be able to navigate this system not only in a humane manner but in a fair manner, in a clear manner, where people are not only held accountable but there is transparency," said Hernandez.
Law experts say the constitution does allow for courts to be established through Article 1, which covers Congress.
"In an Article 1 court, the president does not have to make the appointment. They can be made in some other way. They are not for life, they are for a term," said David Levine, a UC Hastings Law Professor.
Levine says other Article 1 court systems already exist in the U.S.
"We do have several that are like that. Bankruptcy court and the tax court is like that. It’s the way for taxpayers to challenge if the IRS says they owe money," said Levine.
Levine says making such a transition, however, would need ample funding and time to handle the backlog of immigration cases.
"You would expect there would be growing pains with something like this so it would need adequate resources...but expect hiccups."
Lofgren says she is talking with members of the Senate about a companion bill and wants to find common ground across the aisle.
"I also want to reach out to some of the Republicans who have told me in the past they favor an Article 1 approach and see whether they're comfortable with this," said Lofgren.
The American Bar Association, American Immigration Lawyers Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Council, Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense, National Immigrant Justice Center, National Immigration Law Center are in support of the bill.
LINK: H.R. 6577, The Real Courts, Rule of Law Act of 2022