On May 8, 2021, The New York Times Editorial Board published an article, which boldly stated: “Immigration courts aren’t real courts. It’s time to change that.” The decision to run the piece was surprising considering how little attention the immigration court system typically receives, but by all measures, their diagnosis was accurate. Immigration courts are suffering the largest backlog of pending cases in their history, 1.3 million as of May 2021 according to TRAC. Immigration judges (IJs) lack any meaningful judicial independence—by any definition of the concept—facing perverse work incentives, limited resources, and politicized hiring procedures. And perhaps most glaringly, the chief prosecutor in immigration court is also the chief judge. The U.S. Attorney General has the power to intervene directly in IJ decision-making and overturn decisions they conclude are incorrect, a move employed frequently by former AG Jefferson Beauregard Sessions III.
While these facts are indisputable and the pain of legal limbo for immigrants undeniable, the solution proposed by NYT misses the mark. The answer that the Editorial Board offers is one that immigration advocates have heard many times before—the establishment of an Article I immigration tribunal, or a “legislative court.” Currently, the immigration court system is housed within the Executive Office for Immigration Review (EOIR), which is a sub-agency of the Department of Justice and part of the reason why IJs face so much interference. The idea is to replace the EOIR with an ‘independent’ immigration court system consisting of Article I trial and appellate-level immigration tribunals—what proponents call ‘real’ courts. But this apparent solution is not new (similar proposals date back to at least the W. Bush years), nor is it adequate to address the underlying problem: a heinous deportation machine. We should not be focused on reifying the U.S. immigration bureaucracy, which upends lives and separates families, but on finding ways to keep as many immigrants from getting entangled in this system in the first place
In her work, well-known activist, educator, and abolitionist Mariame Kaba has underscored the importance of rejecting all talk about policing and the so-called criminal justice system being “broken.” The same principle must be applied to our discussions of the immigration system, which shares the same carceral violence and logics of social control as its criminal counterpart. By constructing the immigration court system, as well as the immigration system in its entirety, as “broken” or “not working,” this rhetorical choice reaffirms reform, rather than abolition, as the only workable solution. Moreover, the very notion of reform bolsters the idea that the underlying institution is effectively just—merely suffering from managerial and operational inefficiencies. But I, along with countless immigrants, advocates, abolitionists, and all those fighting for collective liberation do not find “justice” in an immigration system that has deported or expelled close to 600,000 in the first half of 2021 alone.
The establishment of an Article I immigration court system will do little other than legitimate the state’s heavy handed and oppressive approach to migration. Understandably, proponents of ‘independent’ immigration courts highlight that this approach would better guarantee fair and impartial decisions in immigration proceedings. But how much merit does judicial impartiality hold if the laws they apply are coercive to their core? Historically, conceptions of immigrants’ rights (like notions of racial equality) have fit conveniently into the formalist model of jurisprudence. So long as the rules are followed as prescribed by law, what is called “due process,” then a judge can pay lip service to an immigrant’s unfortunate personal circumstances while arriving at a decision that perpetuates the injustice and violence embodied by the law. An ‘independent’ immigration court would not solve the low rates of legal representation in immigration court, which is as low as 23% in North Carolina according to TRAC. This system would not change any of the inequities entrenched in the convoluted web of U.S. immigration law. And above all, this proposed solution would do nothing to help achieve the long-term goal of ending the prison-industrial complex in which immigration enforcement plays such a burgeoning role. It is hard to imagine that a “reformed” system would look much different from what we have now.
As is often the response to abolitionist perspectives, some will say we are overly focused on tearing systems down. But out of the mud the lotus will grow. A crucial part of the abolitionist vision is the desire to create and build new systems that transcend existing structural forms of oppression. Instead of searching for ways to improve the efficiency of an arm of the deportation machine, abolition challenges us to ask: “Why do we have a quasi-judicial body designed to rubber stamp the government’s unjust immigration practices in the first place?” From this principled standpoint, we can begin to experiment with new approaches to reduce the harm wrought by the U.S. immigration system and its racist, sexist, classist, and ableist legacies.
For anyone committed to collective liberation (in any form), this call for transformation is logical. Justice for immigrants, refugees, asylees, and all non-citizens living in what is known as the United States will not come from polishing a morally bankrupt immigration court system. Instead, we must ask, as abolitionists often do, “What can we imagine for ourselves and the world?” For me, answering this question (at least as it pertains to immigration) does not start with supporting a path of reform that would provide more money and resources to immigration courts. Rather, it begins with questioning the very existence of these “courts” and organizing with those people committed to transcending the structures of oppression they perpetuate.