The Immigration Court

The problem

The immigration courts are not courts. They are an office of the Department of Justice, the Executive Office for Immigration Review, and the immigration judges who sit in them are employees of the Attorney General, who is also, through the Department of Homeland Security's lawyers, effectively the prosecutor. The Attorney General may refer any case to himself and decide it, setting precedent for every judge below; may direct judges on how to handle categories of cases; and has, in recent years, set case-completion quotas, disciplined judges for rulings, and reassigned or removed judges whose decisions displeased the administration of the day. A judge who grants asylum in a case the Department wanted denied is a judge with a problem. The Department does not view them as independent judicial officers and says so.

The docket has collapsed under the arrangement. In January 2026 there were about 570 immigration judges. The Executive Office counted 2,424,061 pending asylum cases at the end of fiscal 2025, and more than two million cases pending overall, about 3,300 per judge; the average case takes about 900 days from filing to decision, and in some courts more than four years. A case decided in 2026 was filed under one administration's policy, argued under another's, and decided under a third's, by a judge whose employer changed its mind twice. № 060 showed what this does to the people detained while they wait. This proposal is about the court that makes them wait.

The remedy has been on the table for decades and has the rare distinction of being endorsed by the judges, the prosecutors' bar, the defence bar and the American Bar Association together. On March 5, 2026 the Real Courts, Rule of Law Act was reintroduced: an independent United States Immigration Court under Article I of the Constitution, the same footing as the Tax Court and the bankruptcy courts, with appellate judges appointed by the President and confirmed by the Senate to staggered fifteen-year terms, trial judges appointed by them, and a budget that does not depend on the executive branch's approval. The Federal Bar Association drafted it; the immigration judges' own association endorsed it. It has not reached the floor.

The proposal

The Immigration Court: an independent Article I court, on the model of the Real Courts, Rule of Law Act. Appellate judges appointed by the President and confirmed by the Senate to staggered fifteen-year terms; trial judges appointed by the appellate court for fifteen years; removal only for cause. No official of the executive branch may refer a case to himself, direct a judge, set a quota, or discipline a judge for a ruling. The number of trial judges rises from 570 to 1,500 over five years. The court's budget is submitted directly to Congress.

How it would work

1. An Article I court. Congress creates the United States Immigration Court under its Article I power, as it created the Tax Court in 1969 and the bankruptcy courts in 1984. The court's decisions are reviewed by the federal courts of appeals as now. The Executive Office for Immigration Review is abolished and its judges, staff and cases transferred.

1. Fifteen-year judges. Appellate judges are nominated by the President and confirmed by the Senate to fifteen-year staggered terms, with no more than a set share from one party, on the model of № 066. Trial judges are appointed by the appellate court from a merit list for fifteen years. Removal is for cause only, stated in writing. A judge does not answer to the prosecutor, and a ruling is not a career risk.

1. No hand from the executive. The Attorney General's power to refer cases to himself, to issue binding precedent by fiat, to set completion quotas and to discipline judges for rulings ends. Precedent is made by the appellate court, as in every other court. The Department of Homeland Security remains the party bringing cases, with the standing of any prosecutor.

1. Three times the judges. From 570 to 1,500 trial judges over five years, with the clerks, interpreters and courtrooms to match. At about 700 completions a judge a year, 1,500 judges decide about a million cases annually, which clears the two-million backlog within about four years net of new filings, and thereafter keeps pace at a fraction of today's wait.

1. The budget to Congress. The court submits its budget directly to Congress, as the federal judiciary does, so that an administration that dislikes its rulings cannot starve it.

1. The clock, kept. The Detention Clock of № 060 and the Asylum Docket of № 100 set the deadlines; the court is what makes them meetable. A person's case is decided by a judge who owes nothing to anyone, in months rather than years, and both sides can appeal.

The numbers

The judges. 570 today; 1,500 in five years. A judge team, with clerk, interpreter and courtroom, costs on the order of $1 million a year; the additional 930 teams cost about $1 billion a year at full strength, against an immigration enforcement budget in the tens of billions.

The backlog. 2.4 million pending asylum cases; more than 2 million total; 900 days average. At a million completions a year, the backlog clears in about four years and the average wait falls to months.

What delay costs. Detention at $165 a day for those held; years of limbo for those not; and, for the claims that fail, which is most, years of presence that a faster decision would not have granted. Speed is the one reform in immigration that both sides of the argument should want, and an independent court is how it is done without the speed becoming a quota.

The precedent. The Tax Court has decided disputes between the government and taxpayers for over fifty years with judges the government cannot fire for ruling against it. Nobody proposes to return it to the Treasury.

The honest objections

"Independent judges will grant more asylum and the border will open." Independent judges will grant what the law grants and deny what it denies, which today depends on which courtroom and which year. The grant rate in the immigration courts is about 31 percent; an independent court might move it either way, and the point is that the movement would come from the evidence rather than from the Attorney General's memo. A country confident in its asylum law should want it applied by judges who cannot be leaned on.

"Article I judges are still political appointees." They are appointed as federal judges are, confirmed by the Senate, for fifteen years, in staggered terms with a partisan cap, and removable only for cause. That is the design that has kept the Tax Court and the Federal Reserve independent of the presidents who appointed them, and it is as much as any structure can do.

"The fix is fewer cases, not more judges." Both, and № 100 addresses the first. A court with 570 judges and a two-million backlog would need decades to clear it even if not one new case were filed. The judges are not optional.

"A billion dollars a year for immigration judges is money that should go to enforcement." A removal order that takes four years to obtain is enforcement that does not happen. The court is the part of the enforcement system that decides who is removable, and it is the part that has been starved. A billion dollars for decisions in months, rather than tens of billions for detention over years, is the cheaper enforcement.

"The Attorney General's certification power exists so that the executive can set immigration policy." The executive sets immigration policy through the cases it brings, the priorities it publishes and the regulations it writes, as every prosecutor and agency does. What it should not do is decide the cases it brings, which is what certification is, and which no other litigant in America is permitted.

Sources

• Real Courts, Rule of Law Act, reintroduced March 5, 2026, and the Federal Bar Association's The Need for an Independent Immigration Court (2024)
• American Bar Association, Article I Immigration Courts Resources, and the endorsements of the American Immigration Lawyers Association and the National Association of Immigration Judges
• Executive Office for Immigration Review, Adjudication Statistics, judge counts, pending cases and asylum backlog, fiscal 2025 and January 2026
• Congressional Research Service, Asylum Process in Immigration Courts and Selected Trends (R47504)
• Harvard Law Review, "Courts in Name Only: Repairing America's Immigration Adjudication System," vol. 136 (2023)
• Proposals № 007 (The Humane Perimeter); № 055 (The Warrant Standard); № 060 (The Detention Clock); № 066 (The Trustees); № 100 (The Asylum Docket, forthcoming)