Excerpted From: Chloe Wigul, The Immigration Court System: Unconstitutionally at the Hands of the Executive to Push Nativism, 43 Journal of the National Association of Administrative Law Judiciary 40 (Spring, 2023) (235 Footnotes) (Full Document)


ChloeWigulWhen Congress approved Theodore Roosevelt's 1939 Reorganization Act, it made the immigration court system vulnerable to racism and xenophobia. Congress allowed the executive branch to maintain a stake in immigration court proceedings: “In the event of disagreement between the head of any department or agency and the Attorney General concerning the interpretation or application of any law pertaining to immigration, naturalization, or nationality, final determination shall be made to the Attorney General.” Congress, declining to follow the structure of other Article I courts, made the executive branch the final arbiter in select immigration matters.

Why then did Congress depart from other Article I courts' structure and destroy the longstanding principle of judicial independence, when there is nothing inherent in immigration that compels it to be under attorney general and executive control? Evidence points to anti-immigrant history and policy that has plagued the United States since the 1700s. By comparing the immigration court structure to the tax court structure, this comment provides historical, legislative, and political background that lead to the inevitable conclusion that Congress placed immigration courts under executive control, so the attorney general could further the executive agenda, which was prone to xenophobic attitudes and anti-immigrant policies.

Part Two of this comment will discuss the overarching theme of the separation of powers and why judicial independence and review are vital in maintaining a democratic system of government and ensuring fairness and justice in court proceedings. Part Three examines the current immigration court system and the current tax court system. Part Three also compares the two courts to highlight how tax court maintains judicial independence and review while immigration court, due to its structure, does not retain either. Part Four outlines three, critical historical eras for both immigration law and tax law development, illustrating how xenophobia influenced immigration law and policy but played no role in tax law and policy--though both areas have been hot button issues since this country's founding. Part Five analyzes In re D-J-, a prevalent court case, to illustrate how xenophobia influences attorney general decisions in immigration court proceedings. Part Six explains the unwanted and problematic consequences in the current immigration court system when there is a lack of judicial independence and review, and Part Seven argues that our tax court system should serve as a model on which the immigration court system should be structured and proposes necessary changes.

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Alexander Hamilton stated: “There is no liberty, if the power of judging be not separated from the legislative and executive powers.” Even though we refuse to tolerate “judicial comingling with the political branches in other areas of law,” such as tax law, in the immigration adjudication system it has been longstanding practice.

After examining the evolution of immigration law and policy as compared to tax law and policy and determining that history does not necessitate any difference in court structure between the two, it becomes clearer that the difference in structure is rooted in xenophobia. In failing to depart from historic nativism, the United States is essentially destroying the foundation of its government--the separation of powers--by eliminating judicial independence and preventing judicial review.

To structurally change immigrations courts, the United States must be committed to understanding the roots and costs of xenophobia to combat these deep-rooted ideologies. While President Joe Biden voiced his commitment to “modernizing” the immigration system, much like other presidents, he failed to propose a system that provides the necessary safeguards against the attorney general and his own branch of government, and he has not teamed up with Congress to create a wholly separate Article I immigration court.

The immigration court's structure is clearly reflective of this nation's intolerant views towards non-citizens. Not only does its structure perpetuate xenophobia, but it undermines the fundamental doctrine of separation of powers, judicial independence, and judicial review. Xenophobia, not immigration, is a graver threat to our nation. We cannot afford to practice this bigotry if it threatens the very foundation of our democracy. Therefore, immigration court should be structured like tax court where there is no executive interference.