Many respected commissions, organizations and individuals have long assailed our nation’s administrative system for procedural fairness in immigration proceedings (including, the Federal Bar Association, which has proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center, and Ashley Tabaddor, then President of the National Association of Immigration Judges, and now Chief Counsel of USCIS, in congressional testimony).
In my view, in addition to the need for an Article I immigration court to allow procedural fairness in removal proceedings, impartial justice requires that a single Article I immigration court be established to review administrative rulings and issue binding legal decisions applicable to all federal immigration administrative tribunals. This would include review of decisions of the U.S. Department of Labor‘s Board of Alien Labor Certification Appeals and Administrative Review Board, the U.S. Department of Justice‘s Office of the Chief Administrative Hearing Officer, U.S. Department of State‘s consular officers’ visa refusals, and the U.S. Department of Homeland Security‘s Administrative Appeals Office of USCIS.
The decisions of an Article I immigration court would no longer be subject to reversal by the Attorney General who has authority under Section 103(a)(1) of the Immigration and Nationality Act (INA) to make binding law (“determination and ruling by the Attorney General with respect to all questions of law shall be controlling”). Rather, just like other Article I courts, such as the Bankruptcy Court and the Tax Court, Article I judicial decisions are legally binding and cannot be overturned by an Executive Branch official.
I am prompted to write this article because of two significant developments.
On October 12, 2023, the Executive Office for Immigration Review published an interim final rule (IFR) with an opportunity for comment which makes review of decisions of the DOJ’s Office of the Chief Administrative Hearing Officer interpreting the antidiscrimination provisions of the INA, Section 274B, reversible by the Attorney General.
To be sure, the purpose of the IFR is to seek to comply with a 2021 Supreme Court decision, United States v. Arthrex, Inc., which held that, under Article II of the Constitution, decisions issued by certain inferior officers exercising adjudicatory authority must be subject to review by a politically accountable official, such as an officer appointed by the President with the advice and consent of the Senate.
On October 18, 2023, the Subcommittee on Immigration, Citizenship, and Border Security of the Senate Judiciary Committee held a hearing (“Preserving Due Process and the Rule of Law: Examining the Status of Our Nation’s Immigration Courts”) where testimony from multiple witnesses confirmed the need for an Article I immigration court.
Our nation’s immigration laws cry out for a single judicial body that can harmonize the many disparate voice of federal immigration agencies by issuing binding rulings that may only be overridden by a higher court.
The citizenry and the immigration stakeholder community deserve no less. Let’s rebalance the scales of justice.