The immigration court system is a set of administrative courts under the power of the U.S. Attorney General. It is operated by the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR).
After the Department of Homeland Security (DHS) charges a foreign born individual with violating immigration laws, EOIR decides whether that individual is removable (deportable) from the country and if found removable, whether they qualify for any protection or relief from removal. To make these determinations, EOIR’s Office of the Chief Immigration Judge (OCIJ) has approximately 350 immigration judges who conduct removal hearings and other administrative court proceedings.
EOIR comprises 59 courts throughout the U.S., plus the Board of Immigration Appeals (BIA), an appellate court. Immigration courts only hear cases involving immigration, such as efforts to remove an alien from the United States or adjudicate a request for asylum. In addition, when a dispute has arisen between an alien and ICE (Immigration and Customs Enforcement), it is the immigration courts which make the ultimate decision to grant or deny the requested immigration status.
Immigration court judges advise aliens of their immigration rights, hear testimony, make credibility findings and rulings on the admissibility of evidence, and make factual findings and legal rulings, among other tasks.
What Role Does the Department of Justice Play?
The Department of Justice (DOJ) runs the entire immigration court system. In addition to hiring all immigration court judges, the DOJ sets the courts’ rules and procedures. The Executive Office for Immigration Review (EOIR) is a sub-agency of the DOJ whose chief function is to conduct removal proceedings in immigration courts and adjudicate appeals arising from the proceedings.
The DOJ also oversees the Board of Immigration Appeals (BIA), which is the first step in the appellate process for the immigration courts. The BIA’s decisions are subject to review by the Attorney General and by federal courts. BIA decides appeals through paper reviews rather than in courtroom proceedings. BIA decisions are binding unless they are modified or overruled by the Attorney General or federal courts.
Can I Appeal an Immigration Court Decision?
An immigration court decision can have a major impact on your life. It might even result in your deportation. Fortunately, you have 30 days from the date of the judge’s decision to file an appeal.
Once you start the appeal process, your case will be sent to the Board of Immigration Appeals (BIA). While it waits to hear your appeal, the BIA will order that the enforcement of the immigration court’s decision cannot take place until the appeal has been decided (a “stay” will be ordered). If the immigration court has ordered your deportation, the stay will prevent the deportation from taking place until the Board of Immigration Appeals has reached a decision.
Decisions of the BIA can also be appealed. If you appeal the decision of the BIA, your case leaves the immigration court system and moves into the federal court system. The federal court cannot just take on any case. Instead, it can only review constitutional claims and questions of law.
In addition to, or instead of, filing an appeal of a BIA decision, it is possible to file a “motion to reopen” or a “motion to reconsider” with the Administrative Appeals Office (AAO). In a motion to reopen, you must present new information that was not available at the time of the original decision. In a motion to reconsider, you must show that the original decision was based on an incorrect application of the law to the facts of your case.
Are Other Agencies Involved with Immigration Issues?
Most people concerned with an immigration issue work with the U.S. Citizenship and Immigration Services (USCIS). The USCIS is part of the Department of Homeland Security (DHS). Through USCIS, the Department of Homeland Security enforces immigration laws and administers immigration and naturalization benefits. The DHS took over these responsibilities from the Immigration and Naturalization Service (INS) in 2002.
USCIS provides immigration benefits to people who are entitled to stay in the U.S. on a temporary or permanent basis. These benefits include:
- Granting U.S. citizenship to those who are eligible
- Authorizing individuals to permanently reside in the U.S. (issuing “green cards”)
- Providing noncitizens with the eligibility to work in the United States
Another important immigration branch of the government is U.S. Immigration and Customs Enforcement “ICE,” which is the DHS’s policing arm. ICE could be thought of as the “immigration enforcers.” Between October 1, 2020 and September 30, 2021, ICE Deported 59,011 people. ICE operates throughout the United States and in 47 foreign countries.
Criticism and Controversies of the Immigration Courts
The Attorney General’s use of precedent decisions (decisions from prior cases that are used to guide current cases) has been subject to criticism. The BIA designates certain orders as precedent decisions, which are then published and apply to immigration cases nationwide. The federal circuit courts may also issue precedent decisions on immigration law issues that are then controlling in that particular federal circuit.
Some commentators have argued that instead of setting doctrine, the Attorney General’s use of precedents has departed from agency procedures and practices. It has also been used to adjudicate issues not relevant to a particular case, and has disrupted the progress of immigration law by adopting the minority view instead of upholding the majority opinion.
In January 2021, the San Francisco Chronicle reported that the Executive Office for Immigration Review had failed to prevent or to respond appropriately to instances of sexual harassment by judges and supervisors. A November 2019 report by the United States Department of Justice Office of the Inspector General found that senior managers involved in hiring immigration judges had used a system of code words to rate “the attractiveness” of female job applicants.
There are approximately 350 immigration judges and as of December 2020, there were more than 1.2 million pending cases in the court system. This means that the average immigration judge has a backlog of over 3,400 cases. The average wait time for a case to be heard is about two years, with wait times in some locations taking more than four years.
There are even cases in the system that have been waiting ten years. Backlogs and delays benefit neither immigrants nor the government. The aliens are kept in limbo and often in detention, increasing their suffering and the costs of detention for the government. Families are often separated for long periods of time, and chances that overburdened judges will make mistakes are increased.
Should I Hire an Attorney for Immigration Court?
If you are going to appear in immigration court, you should hire an immigration attorney. An experienced attorney will ensure that your interests are properly represented. This is particularly important as your immigration status could be in jeopardy and you may be in danger of deportation.
As ICE itself reports, it has more than 400 federal statutes at hand to use to arrest you, detain you, and remove you from the country. It could be dangerous not to hire a lawyer if only to even out the odds.
In immigration court or appeals court, the United States will be represented by an attorney throughout the course of the trial, hearing or appeal. That will be an attorney who handles only that type of case. You need someone on your side who is equally experienced and knowledgeable.
