Roberts's proposed law is simple, consisting of a three-and-one-half-page appendix to his article containing ten succinct sections. Section one provides that the court would be comprised of an appellate division with seven judges and a trial division with fifty ingiltere vizesi judges. There would be chief judges for both the appellate division and trial division to be appointed by the President, "with the advice and consent of the Senate, for terms of fifteen years." The judges of the appellate and the trial divisions would also be chosen by the President, "with the advice and consent of the Senate," and would also serve fifteen-year terms.

Sections two and three, respectively, mandate compensation for judges and procedures for removing judges for incompetency, misconduct, or neglect of duty. Section four mandates that the appellate division "promulgate rules of court governing practice and procedure" in both the appellate division and in the trial divisions. This would solve the problem of lack of standard procedures in the immigration courts as they now exist. Section five mandates appellate division administration; Section six mandates appellate division jurisdiction; Sections seven and eight mandate trial division administration and trial division jurisdiction respectively. Section nine is a "savings" provision. This means, that if one section of the court proposal is invalidated or found to be unconstitutional, then the remainder of the court would remain viable. Section ten discusses and defines "Finality" of decisions in the two courts. In this context a final decision of the appellate division would be binding on all judges of the trial division and on all officers of the United States. Such "finality" would also be subject to review only by the "Supreme Court of the United States on a petition for certiorari." Unfortunately, the Roberts proposal did not provide that the Article I immigration judges be granted the authority to sanction lawyers or respondents for contempt of court. All judges of every court should be granted contempt power to ensure efficient operation of the court and prevent frivolous or disruptive behavior by lawyers or applicants.

Roberts's proposal is simple but anachronistic. This proposal was written just before the Refugee Act of 1980 took effect. It was this 1980 Act that made it necessary for the then existing INS to start holding asylum trials. There was then an increase in immigration court hearings once respondents were allowed to seek asylum from persecution. Today the idea of an immigration trial division with only fifty judges is laughable and unimaginably small-but this was a good start. Some thirty years later we have 263 immigration judges sitting in fifty-nine trial division courts. The proposal, if passed by Congress, would have made the immigration courts more independent and, perhaps, fairer. The proposal, though a good one, gained no traction and went nowhere.

In the late 1990s there were actually three bills put forth in Congress by Representative Bill McCollum to establish the United States Immigration Court as an Article I Court. All three of the bills were similar and each was referred to the House Committee on the Judiciary. Each of the bills died in committee and never became law. Nevertheless, I will summarize the basics of the 1998 bill, which represents what Representative McCollum proposed in each bill for an Article I Immigration Court.

In 1998, in the 105th Congress, the bill H.R. 4107 was drafted and referred to the Committee on the Judiciary. The bill would have established an Article I Immigration Court consisting of an immigration trial court and an appellate division. The appellate court would consist of a chief judge and eight other judges appointed by the President "with advice and consent of the Senate." They would serve terms of fifteen years. The appellate judges would sit and hear cases as a panel of three judges to decide appeals.

The trial division would "be composed of a chief immigration trial judge and other immigration trial judges (IJ's), appointed by the Chief Immigration Appeals Judges." The bill further provided that all immigration judges serving at the time of enactment of the bill would be appointed Article I Judges by the Chief Immigration Judge. Such trial judges would serve fifteen-year terms and could be removed for cause, including "incompetency, misconduct, or neglect of duty." Judges of each division of the court would have the power to punish lawyers or respondents for contempt of court, either by fine or imprisonment. The McCollum bill makes it easier than the Roberts proposal to remove judges from the immigration court, but the bill would also confer contempt power on the trial and appellate judges. This would allow judges to sanction disruptive or frivolous behavior by lawyers and applicants.

The bill clearly articulated the authority of the trial and appellate judges. Section 115 provides that "the appellate division shall promulgate rules of court... governing... the appellate division and trial division." The section provides further that, "only such selected provisions of the Federal Rules of Evidence and the Federal Rules of Civil Procedure as the appellate division deems appropriate for inclusion in the rules of the Immigration Court shall apply to proceedings in Immigration Court." The bill also spells out rules for retirement. The bill also limits judicial appeals. The current system allows a respondent who loses an appeal in the BIA to appeal the decision to the federal circuit court in the district where the immigration court is situated. Representative McCollum's H.R. 4107 would limit appeals of such cases only to the Court of Appeals for the Federal Circuit that sits in Washington, D.C. These are the crucial provisions of the bill.

It appears that Representative McCollum may have used Roberts' proposal for an Article I Court as a blueprint and then expanded upon it. The two basic differences between the Roberts proposal and the McCollum bill is that, first, H.R. 4107 would confer contempt sanctioning power on both appellate and trial judges of the Article I Immigration Court. Second, the Roberts proposal made the decisions of the new appellate court final, but they would be subject to review by the Supreme Court on a petition for certiorari. H.R. 4107 would make the final review after the appellate division only to the Federal Court of Appeals for the Federal Circuit. This sounds unworkable, for there is only one Federal Court for the Federal Circuit which is in Washington, D.C., and it is unlikely that this one court could handle all of the appeals of asylum cases which are now spread out over eleven federal circuit courts.

Although it was not a proposal made in either a law review article like Roberts's or a bill like Representative McCollum's, the National Association of Immigration Judges advocated for an independent immigration court in a January 2002 position paper. The Association favored the creation of an Article I Court. In their position paper they cite the work of Maurice Roberts. The position paper argued that an independent immigration court would promote more efficiency, accountability, and impartiality in the workings of the immigration courts.

Unfortunately, we still have no Article I Immigration Court independent of the Department of Justice. Some argue that there may be no political will in Congress to appropriate the type of money to transform the immigration judiciary into an independent Article I Court. However, such argument may be without merit. It already costs millions of dollars to maintain the EOIR within the Justice Department. However, the EOIR is not really in the Justice Department building on Pennsylvania Avenue in Washington, D.C.; it is housed in a separate facility in Arlington, Virginia. If such a change was made it would not be much more expensive than the status quo, since the change would be more formalistic than substantive. The same structure that is in the existing courts, judges and staff would remain in existence but under a different name and under standardized rules and procedures promulgated and put in place. The headquarters of the new court could even remain in the EOIR's present facilities in Arlington.

Also going forward, pursuant to the McCollum bills, the Chief Appellate Judge and the eight other appellate judges would be chosen by the President of the United States, with the advice and consent of the Senate. The chief judge of the trial division and the trial division judges would be chosen by the chief appellate judge. It appears that there could be an almost seamless transition from the EOIR to the Article I Court for little more money than is now used to fund the courts as part of the Department of Justice.

I have examined herein proposals of what an Article I Immigration Court system could look like. A two division court-an appellate division and a trial division-where the chief judge of the appellate division and eight other appellate judges would be appointed by the President of the United States and with the consent of Congress, would sit for a fifteen-year term. The chief of the appellate division would appoint the chief judge of the trial division and the trial judges who would also sit for fifteen-year terms, on good behavior. The structure is already in place. It would not necessarily be much more costly to run such an Article I Immigration Court than it is to pay the costs of operating the immigration courts as part of the EOIR.

I believe that an independent Article I Immigration Court would be better for asylum seekers because a court free of oversight by the Attorney General would offer better independence and impartiality for asylum seekers.

Yet, there seems to be no political will from Congress to create such a court. Nor does it appear that the United States Attorney General is anxious to relinquish his oversight of the immigration courts. It is the author's hope that this article might convince Congress to consider Article I Court proposals that have been put forth over the last thirty years

The immigration courts of the United States are a branch of the United States Department of Justice known as the Executive Office for Immigration Review (EOIR). They are administrative tribunals devoted to hearing immigration matters, mainly deportations. The United States maintains fifty-nine immigration courts spread over twenty-seven states of the United States, Puerto Rico, and the Northern Mariana Islands, staffed by a total of 263 sitting judges.

The Attorney General of the United States is the head of the EOIR and appoints immigration judges to the courts. As I have written in previous articles, this method of judicial appointment has always appeared to me to create a conflict of interest. If the Attorney General appoints the immigration judges, can these judges be fair and impartial to asylum seekers when they owe their job to the Attorney General? In many cases, I believe the answer is no; they cannot divorce the political pressure they face from the Attorney General from the outcome of their asylum cases.

The immigration judges are appointed by and serve at the pleasure of the Attorney General of the United States, the country's chief law enforcement officer. There is no set term limit on the appointment of the immigration judges. In order to avoid disappointing their boss, the Attorney General, judges may intentionally avoid providing "too many" grants of asylum. Furthermore, because asylum grants are discretionary relief under the Immigration and Nationality Act (INA), a form of relief that grants immigration judges unlimited discretion in deciding asylum cases, only the Board of Immigration Appeals (BIA) and the relevant federal circuit have jurisdiction to review.

I believe that our immigration court system should become Article I Courts like the U.S. Bankruptcy Court and the U.S. Tax Court. This would make the immigration courts independent of the Department of Justice and immune from possible political pressure from the Attorney General. In a 1997 speech Immigration Judge Dana Leigh Marks, past president of the National Association of Immigration Judges, advocated for making immigration courts an Article I Court. She stated, in relevant part:

Experience teaches that the review function of the court works best when it is well-insulated from the initial adjudicatory function and when it is conducted by decision makers entrusted with the highest degree of independence. Not only is independence in decision making the hallmark of meaningful and effective review, it is also critical to the reality and the perception of fair and impartial review.

Immigration courts, as they are now situated as part of the EOIR do not provide the kind of judicial independence that is critical to the perception and reality of the fair and impartial review Judge Marks describes.
I will examine herein a few of the proposals put forth over the last thirty-five years to transform the immigration court system into an Article I Legislative Court.

Perhaps, someday soon, Congress will revisit this issue of reforming the immigration court system by making it into an Article I court.

The History of the Immigration Courts

Our immigration courts are the "trial level" administrative bodies responsible for conducting removal (deportation) hearings-that is, hearings to determine whether noncitizens may remain in the United States. For asylum seekers with attorneys, such hearings are conducted like other court hearings, with direct and cross-examination of the asylum seeker, testimony from supporting witnesses where available, and opening and closing statements by both the government and the respondent. Approximately one-third of asylum seekers in immigration court are not represented by counsel. Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence apply in immigration court.

Prior to 1956, "special inquiry officers," who were the predecessors to immigration judges, held hearings only as part of a range of immigration duties that included adjudicating deportation proceedings. These officers were retitled "immigration judges" (IJ's) in 1973. Until 1983, immigration courts were part of the Immigration and Naturalization Service (INS), which was also responsible for enforcement of immigration laws and housed the INS trial attorneys who opposed asylum claims in court. In January of 1983, the Executive Office for Immigration Review (EOIR) was created, placing the immigration courts in a separate agency within the U.S. Department of Justice. In 2003, when the old INS was abolished and the Department of Homeland Security was created, the trial attorneys became part of the new agency, but the immigration courts remained in the Department of Justice.

Asylum cases are assigned to immigration courts according to the asylum seekers' geographic residence. The administrators in each immigration court randomly assign cases to immigration judges to distribute the workload evenly among them and without regard to the merits of the case or the strength of defenses to removal that may be asserted by the respondents.

Appointment of Immigration Judges and Qualifications

Immigration judges are attorneys appointed under Schedule A of the excepted service who are managed by EOIR. Schedule A is a civil service designation for an appointed career employee as provided in the Code of Federal Regulations. Three processes have been used to hire immigration judges: (1) the Attorney General directly appoints the immigration judge, or directs the appointment without a recommendation by EOIR; (2) the immigration judge is appointed after directly responding to an announcement for an immigration judge and submitting the appropriate documentation; or (3) EOIR identifies a need and vacancies are filled from EOIR personnel or sitting immigration judges who requested and obtained the vacancy. Except for direct appointment by the Attorney General, to be considered for the position of immigration judge, an applicant must meet certain minimal qualifications.

The applicant must have a law degree; be duly licensed and authorized to practice law as an attorney under the laws of a state, territory, or the District of Columbia; be a United States citizen and have a minimum of seven years relevant post-bar admission legal experience at the time the application is submitted, with one year experience at the GS-15 level in the federal service. According to EOIR, the DOJ looks for experience in at least three of the following areas: substantial litigation experience, preferably in a high volume context; knowledge of immigration laws and procedure; experience handling complex legal issues; experience conducting administrative hearings; or knowledge of judicial practices and procedures.