The Volokh Conspiracy
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A Proposal To Create A New Article III Court of Immigration Review
"Creation of the COIR would also ensure a 'uniform rule' of immigration law as commanded by Article I of the U.S. Constitution."
I pass along this proposal from an attorney who recently clerked on the Ninth Circuit. I think this proposal has some merit, and could potentially garner sixty votes in the Senate:
The American people have spoken: migration must be controlled. President Trump won not only the electoral and popular vote, but also Congressional majorities. Surveys show that most Americans approve of "mass deportations." Concern about the border is also bipartisan, with the Biden Administration having moved to restrict asylum claims over the last year.
But while President Trump's Administration may try crack down on immigration, he likely will not be able to achieve the goals of the American people unless Congress is also willing to change how the federal judiciary reviews deportation orders and challenges to immigration policy. To solve this problem, Congress should create a new Article III court with exclusive jurisdiction over all immigration cases—call it the Court of Immigration Review (COIR).
The basic contours of America's mass-migration problem are well understood. Economic migrants travel from distant places—sometimes flying from Asia and Africa—to South America, walk or ride to the U.S. border, and file a claim for asylum (along with other, arguably redundant claims). Most of these claims are meritless. But simply by articulating a fear of persecution, most migrants will be issued a notice to appear and released to await a hearing before an immigration judge (IJ). This process is so backlogged that even scheduling the hearing can take years, leading to what DHS agents call "catch and release."
Even after an IJ rules, the process does not end: roughly 1.4 million migrants are subject to a deportation order but remain in the country. When the an IJ rejects an asylum claim and orders a migrant deported, that migrant can appeal to an executive agency called the Board of Immigration Appeals (BIA). If the BIA affirms the IJ's order, the migrant may appeal (again) to a federal circuit court. The appropriate circuit court to hear the appeal is determined by geography. In Texas, appeals go to the Fifth Circuit Court of Appeals. In the American West, they land in front of the Ninth Circuit.
I cannot speak for the Fifth Circuit, but during my time as a Ninth Circuit clerk, immigration appeals made up as many as 30% of cases heard in each sitting. Some languished for years before the court ruled. Most ended with a memorandum disposition summarily affirming the BIA. But reversals happen: for instance, the court recently ruled that a migrant could not be deported because a corrupt police officer in Mexico threatened him after an altercation in 1992. Even when deportation orders are affirmed, the years of delay are a de facto win for migrants. Immigration appeals also contribute to the backlog in the rest of the civil justice system, which is now so severe that the judiciary itself is lobbying for the creation of new Article III judgeships.
The Ninth Circuit is also a favored venue for partisan challenges to federal immigration policy. During Trump's first term, progressive groups repeatedly obtained preliminary injunctions from friendly California district courts subject to review by the Ninth Circuit. During the Biden Administration, conservative states responded by filing challenges to the administration's immigration policy in Texas district courts overseen by the Fifth Circuit. Whatever immigration policy one prefers, the effect of this gamesmanship is to undermine any uniform federal immigration policy.
Enter my proposed Court of Immigration Review. In most respects, the COIR would function like any other court of appeals. It would have eleven Article III judges, it would hear cases in three-judge panels, and its decisions would be subject to review by the Supreme Court. But unlike other courts of appeal, the COIR would have exclusive and original jurisdiction over all appeals from the BIA and all challenges to immigration regulations and statutes. Other federal courts – including district courts – would be stripped of jurisdiction to hear these cases. An exception would be prosecutions for criminal violations of immigration law, which should remain with federal district courts that have experience with criminal trials and procedure.
Beyond clearing the dockets of other federal courts and allowing for a quick resolution to the massive backlog of non-meritorious immigration appeals, creation of the COIR would also ensure a "uniform rule" of naturalization and as commanded by Article I of the U.S. Constitution. Of course, if the COIR's interpretation of immigration law was erroneous, the Supreme Court could step in. But the nation would no longer be dependent on the Supreme Court's intervention to ensure the existence of a uniform immigration policy. Nor would the Court need to repeatedly stay erroneous injunctions issued by single-judge district courts.
While pro-migration partisans may oppose this idea, that is because the current legal chaos contributes to a de facto system of open borders. Democrats may also complain (rather richly, in light of recent proposals to pack the Supreme Court) that Trump should not get to appoint eleven new Article III judges. But COIR judges would be specialists with jurisdiction over immigration matters and have no say over other hot-button judicial issues like abortion. If allegations of court packing are of serious concern, COIR judges could be appointed on a staggered basis, with Chief Justice Roberts temporarily appointing judges from other courts to serve on COIR in the interim.
Finally, the COIR's creation would not break any "norms." The Federal Circuit already has exclusive jurisdiction over patent appeals and the Court of Appeals for the Armed Forces hears appeals involving military justice issues. Congress created Emergency Courts of Appeal to hear challenges to critical national economic policies in the 1940s and the 1970s. And Congress often uses jurisdiction stripping to ensure national priorities are not bogged down in court. During the Biden Administration, Congress stripped the Fourth Circuit of jurisdiction over appeals involving a critical pipeline, and gave the D.C. Circuit exclusive jurisdiction over any challenge to the recently enacted TikTok ban. Fixing the immigration system is no less important.
