Immigration Law

I’m an immigration judge. Here’s how we can fix our courts.

Hon. Dana Leigh Marks, Apr. 12, 2019

"... Many of the flaws in our operations stem from the fact that we are administrative courts located within a law enforcement agency, so crucial decisions are made by officials with little or no experience as judges. It is time to change that.

The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.

But more than that, we need to be free to be independent judges, not be monitored and rated like assembly-line workers. We must be allowed to use our expertise to decide our cases without interference. The current structure detracts from due process and makes people doubt the fairness of the courts we preside over. We need skilled, experienced, neutral managers who understand how to run a court and make transparency, independence and public access paramount — not administrators who want to keep the trains running on time above all else.

A number of lawyers’ organizations and scholars agree, and endorse the creation of an Article I Immigration Court. It would free our courts from the political influences of both the Justice and Homeland Security departments and the political whims of each new administration. It would allow a reliable funding stream from Congress to assure we have the resources needed to address our burgeoning caseload in a timely manner. It would mean that neutral judges would use their skills to make the rules and assure a level playing field for all. An independent immigration court will be an efficient and effective court that provides an example to the world of the superiority of the American justice system. We can and must fix this fatal flaw now."