For the brave people who dare to move across the face of the Earth to the United States, our immigration courts mediate between incarceration and freedom; deportation and reunion; death and asylum. Immigration courts are stark places because there is no in-between; all punishment is imprisonment and banishment. They are hostile places where fairness has never been intended. They may be manipulated by the powerful, and even the semi-powerful, to achieve the destruction of a whole class of people differentiated by only place of birth.
In 2016, a group of advocates gathered in Atlanta, Georgia, to start unraveling the puzzle that is the immigration courts–the puzzle being that, as “courts,” there is a perception that impartiality or justice or fairness, or something akin to any of those, is a value that drives the system. Yet, in every day function, no evidence suggests the correctness of this perception. While the beltway topic was about immigration court “reform,” the advocates began the conversation with a few simple questions: what does it mean to have an immigration court deny nearly 99 percent of cases and order the detention and deportation of nearly everyone? What does it mean to be in an asylum-free zone? Indeed, we wondered aloud, why do we have immigration courts at all?
Three years later, in December 2019, the advocates filed a lawsuit challenging the constitutionality of the immigration court system as a whole. In the lawsuit, the advocates contend that the immigration courts serve merely as deportation machines, the purpose of which, as the name implies, is to swiftly remove humanity from the United States–to achieve mass deportation after a period of mass immigrant incarceration. The advocates contend that the immigration court system as a whole violates the U.S. Constitution because it fails to provide an impartial forum for adjudicating immigration cases, and seeks to effectuate mass deportations rather than issue fair decisions. The advocates alleged that the Attorney General has engaged in widespread, persistent, and egregious mismanagement of the courts, as evidenced by vast asylum-free zones–entire immigration court jurisdictions in which few asylum claims survive.
The U.S. Government filed a motion to dismiss asserting that the case could not be heard because the advocates themselves had not been harmed by the weaponization of the system against individuals, and because, in the Government’s view, the law foreclosed federal court review of the advocates’ claims. Through its motion, the Government sought to shield the immigration court system from scrutiny.
Just weeks later, the coronavirus began its rampage across the United States. More responsible court systems–systems worthy of the label of “court”–largely shut down to avoid becoming vectors for disease and spreading the virus deeper into society. Not the immigration court system. Indeed, the deportation machine could not be stopped. The danger of going to immigration court was plain to everyone. Appalled, the advocates boldly filed a motion for special relief–notwithstanding the case’s novel procedural posture–seeking an order temporarily suspending operation of required court appearances. In response, the immigration court system jumped from chaotic Twitter announcements to slightly less chaotic dispatches via an email listserv, created email addresses to facilitate e-filing at all immigration courts, and shut down the non-detained docket across the country. Although the federal court denied the advocates’ request for special relief, the underlying case against the immigration courts continued.
The court heard oral argument on the Government’s motion to dismiss on July 13, 2020. At oral argument, the advocates presented several challenges to the immigration court system: (1) the asylum-free zones and the immigration court backlog, together with the Attorney General’s gross mismanagement of the system more broadly, violate both federal immigration law and the Take Care Clause of the U.S. Constitution; (2) the administration of the immigration courts violates the right to an impartial decisionmaker or judge; (3) an Enforcement Metrics policy that forces speed onto immigration judges and gives them a financial stake in case outcomes violates federal law; and (4) a special policy directive aimed at families who are seeking asylum violates federal law. On July 31, the court denied the government’s motion to dismiss, allowing the advocates’ claims to proceed.
And now the case goes forward. While there is no certainty that the advocates will prevail, the order denying the motion to dismiss means the constitutionality of the immigration court system is squarely at issue and subject to review by the judicial branch. The case will proceed to discovery.
This lawsuit raises a fundamental question–the same question that the advocates started pondering four years ago: what is the purpose of an immigration court? The public record is clear that justice is not a core value of the immigration court system. The executive has created a system that prioritizes mass incarceration and deportation over fairness in the adjudication of immigration cases. What should an immigration court do? And if we want a system built on fairness, how might we start anew by centering justice and the experience of the people who use the courts–the brave people who journey to the U.S?