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The Extra-Legal Courts of America

Henry Holt

Edited by Ann Vadakkan, Jia Lin, and Vedanth Ramabhadran

The U.S. Immigration Court System is a separate, specialized justice system that seeks to adjudicate cases involving immigration Law. However, the term Immigration Court System is a misnomer for various reasons. Primarily, the Executive branch, not the Judicial, oversees the operation of the Immigration Courts and consequently, they aren’t subject to the same regulations. Similarly, all immigration violations are considered civil offenses, not criminal, even though punishments are often more severe than for criminal violations. Consequently, the “system” is loosely regulated, inequitable, and inefficient.

The Executive Office of Immigration Review (EOIR) judges the majority of immigration law cases. EOIR is an agency within the Department of Justice (DOJ) and it houses all the Immigration Judges (IJs) that decide cases. As a part of the DOJ, the executive branch’s legal counsel, all IJs are subject to the discretion and supervision of the Attorney General of the U.S. (AG). This arrangement, wherein Immigration Judges operate under the DOJ, blurs traditional boundaries between prosecutorial objectives and judicial impartiality. Furthermore, the prosecution in immigration cases, the Immigration and Customs Enforcement Attorneys (ICE), are also part of the executive branch.

How did this entanglement of executive and judicial functions arise? This blending of executive and judicial responsibilities has historical roots tracing back to the Immigration Acts of 1891 and 1893, the first of their kind, which “placed immigration under federal control” and created Boards of Special Inquiry, with three inspectors, to “review and decide cases” regarding the exclusion of immigrants seeking to enter the U.S. and deportation of certain individuals who had violated the law [1]. (Individuals because, although unconstitutional, the U.S. used to deport citizens, often Hispanic, for eugenicist reasons [2]). In 1933, Congress created the Immigration and Naturalization Service (INS) to “handle all immigration matters” [1]. In 1952, the Immigration and Nationality Act (INA), the landmark legislation that all current immigration law is based upon, eliminated the Boards of Special Inquiry and replaced them with special inquiry officers. In 1973, federal regulation authorized the officers to use the title Immigration Judge and wear judicial robes [1].

In other words, Congress never directly established an Immigration Court System; instead, the internal members of the agency gradually gained legal legitimacy as demand for actual immigration adjudication increased. In 1983, responding to such demand, The AG moved the judges and the Board of Immigration Appeals (BIA) into the DOJ, out of INS, under the newly-created EOIR. In 2002, this transition was codified into law: the INS was abolished—most of its responsibilities delegated to the new Department of Homeland Security—and EOIR was officially under the AG’s authority, now formally separated from INS [3]. Many EOIR procedures come from the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), though most of the court’s actions and policies come from the AG’s delegation and are subject to constant change [3]. Here lies the first major problem. Although Congress has the power to organize and ordain ‘inferior courts’ under Article III, Section I of the Constitution, they have never done so for Immigration proceedings. Instead, a fledgling group of inspectors instituted in the 1890s has expanded into a system managing over two million cases, operating without comprehensive congressional guidance or policy. 

Similarly, another 1890s policy has contributed to the modern issues with immigration law. In 1893, The Supreme Court of the United States (SCOTUS) determined deportation to be a “civil rather than criminal sanction” [4]. In other words, deportation is not a punishment for a crime but rather an “administrative mechanism” to enforce the nation’s laws [4]. Because of this ruling, the Court held that immigrants facing removal were “not entitled to the same constitutional rights provided to defendants facing criminal punishment” [4]. This is in spite of the 14th Amendment to the Constitution, which extends due process and equal protection to “any person within [U.S.] jurisdiction.” 

Therefore, because of these two classifications—EOIR as an executive agency and removal as a civil penalty—immigrants are subject to significant injustices in the legal system. The immigrant legal system deprives immigrants of a right to a speedy trial, trial by jury, a statute of limitations for offenses, an initial hearing upon arrest, a bail hearing, and a trial within their state lines [4]. Furthermore, 67% of immigrants lack legal representation in court, as the court is not required to provide representation [5]. Moreover, denied their Miranda rights, many immigrants remain detained indefinitely, often without a clear understanding of their charges or rights. Immigration courts lack an “adequate discovery process,” and unlawfully obtained evidence is often allowed in court [4]. In extreme cases, immigrants have been subject to retroactive application of the law—punishment for actions that were legal when performed. Furthermore, there are no restrictions against cruel and unusual punishment, facilitating medical abuses including forced sterilization [6].

Beyond this deprivation of rights, many immigrants face “double jeopardy” for criminal offenses, or a second prosecution for the same offense. Often, they will be convicted and serve a sentence in prison, and then they will be removed immediately after their release. For example, a client of the National Immigrant Justice Center, after serving a three-month jail sentence for misdemeanor drug possession, was immediately transferred into detention and removal proceedings. Given no initial hearing to determine justification for his second arrest, he remained in detention for a year, quadruple the length of his initial sentence, before NIJC secured his release. Had he not been granted free legal assistance, he may have remained in custody for years, demonstrating a severe disproportionality in punishment and gross misuse of the immigrant detention system [7].

As of now, immigration law violations and criminal prosecutions often go hand in hand. Congress routinely expands the number of crimes deemed “deportable,” and minor criminal offenses carry major weight in removal proceedings [4]. If SCOTUS classified removal as a criminal offense, double jeopardy could not concur, and removal would be a form of punishment that judges could deploy against immigrants upon conviction, thus eliminating redundancy and reducing pre-trial detentions. Although that may sound harsh, currently, immigrants lack sufficient ability to appeal removal decisions. The BIA has limited the types of arguments they are allowed to hear, and the AG has the power to overturn any decision at will—typically for political reasons. More gravely, ICE may remove an immigrant while they still have an appeal pending before the BIA. If removal were considered a criminal punishment, it would be subject to the standard appeals process. Furthermore, if Congress codified the Immigration Courts under the Judiciary, they would face the same regulations as traditional courts, eliminating many violations of legal rights that currently occur within the unregulated EOIR.

Nothing paints a better picture of the current situation than that 1973 federal regulation allowing the former officers to adorn judge’s robes. The current immigration legal system puts on the facade of a neutral magistrate of the law; in reality, it is an unregulated, bloated executive agency. Its harshness depends on the president, its inefficiency is timeless, and it expectedly fails to produce a just, efficient, and fair judicial system. We should replace the current patchwork of internal policies with a Congressionally approved system, subject to judicial standards, focused on providing fair interpretations and applications of law, not dictating the current president’s priorities. Immigrants are entitled to a legitimate process of legal adjudication—a process that respects their rights and offers genuine judicial consideration.


[1]Executive Office for Immigration Review | News and Information, (2015), (last visited Mar 22, 2024).

[2]Alex Wagner, America’s Forgotten History of Illegal Deportations, The Atlantic (Mar. 6, 2017), (last visited Mar 22, 2024).

[3]Executive Office for Immigration Review | News and Information, (2015), (last visited Apr 3, 2024).

[4]Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice, American Immigration Council (2013), (last visited Mar 22, 2024).

[5]Fact Sheet: Immigration Courts, National Immigration Forum (2018), (last visited Mar 22, 2024).

[6]Elizabeth C. Ghandakly & Rachel Fabi, Sterilization in US Immigration and Customs Enforcement’s (ICE’s) Detention: Ethical Failures and Systemic Injustice, 111 Am J Public Health 832 (2021), (last visited Apr 3, 2024).

[7]Decriminalize Immigration, National Immigrant Justice Center, (last visited Mar 22, 2024).

[8]Muzaffar Chishti et al., At the Breaking Point (2023),[9]Empty Benches: Underfunding of Immigration Courts Undermines Justice, American Immigration Council (2016), (last visited Mar 22, 2024).

[10]How Are immigration Courts Different Than Regular Courts - STERN Law, (last visited Mar 22, 2024).

[11]Executive Office for Immigration Review | About the Office, (2015), (last visited Mar 22, 2024).

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