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Nearly a century ago, the U.S. Supreme Court described deportation as a deprivation of liberty that “may result … in loss of both property and life, or of all that makes life worth living.” Today, the gravity of an immigration judge’s decision to order deportation is no less weighty, determining whether an asylum seeker will be returned to the hands of her persecutor or whether a decades-long American resident will be torn from his family. Yet these cases are heard in a broken court system frequently described by the immigration judges’ union representative as “death penalty cases in a traffic court setting.”  

The immigration court system’s dysfunction is largely due to its position within the Department of Justice (DOJ), where it is vulnerable to the political whims of the executive. Over the past year, the Trump administration has explicitly attempted to subvert the mission of the immigration court system, trading the safeguarding of due process for the politics-driven pursuit of increasing deportations. At the National Immigrant Justice Center, we witness the severe harms that follow, including sham hearings and erroneous deportations.

In written testimony submitted in April 2018 for a Senate Judiciary Committee Hearing regarding judicial independence of the immigration courts, NIJC encouraged Congress to consider the merits of creating an Article I immigration court system, and to engage in robust oversight of DOJ to reverse its unacceptable incursions on the court system’s integrity.

This policy brief: 1) provides a brief overview of the vulnerability of the Executive Office for Immigration Review to political sway; 2) outlines the current administration’s attacks on the fairness and independence of the immigration court system; and 3) provides a brief set of principles that must be fulfilled to ensure fairness in the system.