Source: Associated Press via NewsOk
The type of civil administrative adjudications that EOIR conducts are designed to be handled within the structure of the Department and it would take significant resources to create an agency separate from an executive branch cabinet officer.
Beyond potential conflicts of interest, the judges said the DOJ agency and the court system have been underfunded for many years, which has contributed in part to the backlog of more than 375,000 pending cases.
Because of the backlog it can take several years for an immigration cases to be resolved.
Slavin said investing more money in the court system would solve many problems. Just under 2 percent of immigration enforcement spending goes toward immigration courts, Marks said.
And while creating a new, independent immigration court system might be costly initially, she said it would ultimately be more efficient.
“If your gas tank has a leak do you keep filling it up with gas or do you fix it first?” Slavin asked.
As employees of DOJ’s Executive Office for Immigration Review, Marks said, the judges’ dual roles can potentially blur the lines for judges who are supposed to act as neutral arbiters in a complicated court system.
“Our goal is to serve as a neutral court, but paradoxically we are housed in a law enforcement agency,” Marks said.
And often, decisions about how the court is run are made beyond the court system.
Marks said an example of this is the recent decision by the Obama administration to have immigration courts start hearing cases of newly arrived immigrant children caught crossing the border alone before all other pending cases.
She said there is no other court system in which the government would be allowed to order a total overhaul of the docket, placing particular cases at the top. Marks, a judge in San Francisco, spoke Wednesday at the National Press Club with Denise Noonan Slavin, a Miami-based judge who is the union’s executive vice president.