JUDICIAL POWER—IMMIGRATION-STYLE

Throughout this current global pandemic, but of course, even before, former President Trump advocated enacting restrictive immigration measures. Under his tenure, the Department of Homeland Security (DHS) assumed enhancedjudicial authority and issued decisions that often adversely affected noncitizens. However, in June 2020, the U.S. Supreme Court struck down one of the DHS’s most well-known initiatives, which sought to end the DACA’program. The Court held that the agency could not do so arbitrarily and had to comply with the requirements set forth in the Administrative Procedure Act. Yet, there have been other areas where the DHS, particularly through its U.S. Citizenship and Immigration Services (USCIS) office, has asserted its judicial power. The result has been a ‘turf battle’ with the Department ofjustice (DOJ), which has historically housed the country’s immigration courts and theirpresidingjudges. One key conflict between the USCIS and DOJ involves whether the latter’s immigration judges (IJs) can allow undocumented immigrants to applyfor ‘U visas. ’ This visa grants noncitizens the opportunity to remain in the county if they have been (1) victims of abuse and (2) helpful to law enforcement in a criminal investigation. Thefederal appeals courts are split on this question, with two circuits saying that theDOJ’s IJs have this power while two others have held that the USCIS has exclusivejurisdiction. The thesis here is that, as between the DOJ and USCIS, the DOJ’s IJs should and do possess such authority. Butfocusing on this U visa debate highlights a larger structural problem. Immigration adjudicators within both the USCIS and DOJ are, in theory, supposed to be free from political influence. In reality, though, because they serve at the pleasure ofexecutive branch appointees, they must often act in a partisan fashion rather than in ajudieious manner. What is left, therefore, is a system in need of reform. Building upon previous work, this Study urges the removal of immigration adjudication from the USCIS and DOJ, and creation of special Article I immigration courts to check presidential power and ensure that an especially vulnerable contingent of litigants has their rights safeguarded.