Think Immigration: I Wish People Understood that Immigration Court Is an Unlevel Playing Field Where You Face Life and Death Decisions

We asked the members of the 2023-24 AILA Media Advocacy Committee to share the one thing they wished people understood about immigration. We present their insights in this blog post series.

Our immigration courts are not “courts” as we understand them; they are agencies within the Department of Justice (DOJ) and housed in the Executive Branch, with the Attorney General, the country’s top prosecutor, as their “boss.” This means immigration courts are not truly neutral or independent. When I explain that to people, even those with no legal background or any experience in immigration law, they get how inherently problematic that can be. How can judges be independent or neutral when their boss is a political appointee and the government trial attorneys report to them too?

If you are in immigration court proceedings, you have the right to an attorney, but at your own expense. If you can’t afford one, one is not provided for you, unlike in criminal or family court. What that means is that people with language barriers, no legal background, and trauma from their experiences are expected to somehow advocate for themselves in front of that immigration judge. How doable is that?

If you are an asylum seeker, you have an even more uphill battle. To qualify for asylum, you must meet the legal definition of a “refugee,” which is technical and complex and not easy for most. Without an attorney, many will not prevail in their cases. But with an attorney, an applicant’s success rate will jump from 13% to 74% (for non-detained folks).

It is incumbent on Congress to pass legislation that will institute a truly independent Article I court system for the immigration courts. This will be a crucial first step towards leveling a very unbalanced playing field.