If At First You Don’t Succeed [Reprise]: Re-introduced Legislation in the House Would Establish Independent Immigration Courts

This Beltway Bulletin by Cissy Jackson was originally published in the Summer 2026 issue of The Federal Lawyer.

Four years ago, the FBA celebrated the introduction of legislation to advance one of the association’s longstanding policy priorities: the establishment of independent immigration courts. In February 2022, Rep. Zoe Lofgren introduced the Real Courts, Rule of Law Act, which drew upon Congress’ constitutional power to ordain and establish “inferior” tribunals from time to time. Specifically, the legislation would have moved immigration courts outside of the Department of Justice (DOJ), where they currently are housed. Although the House Judiciary Committee voted to approve the bill in May 2022, after that its progress stalled and the bill died at the end of the 117th Congress. However, as the history of the Foundation of the FBA Charter Amendments Act proves, the path to enactment for even uncontroversial legislation can be a long and winding one.1

On March 5, 2026, Rep. Lofgren re-introduced the Real Courts, Rule of Law Act with three cosponsors: Reps. Jamie Raskin, Hank Johnson, and Dan Goldman. The text of the legislation is essentially unchanged,2 as are the purpose and the reasons for the proposed changes.

In 2022, two FBA members testified in support of the bill at a hearing before the House Immigration and Citizenship Subcommittee. Elizabeth “Betty” Stevens, former Immigration Section Chair, and Hon. Mimi Tsankov (Ret.), then-President of the National Association of Immigration Judges (NAIJ), described the numerous problems with our broken immigration adjudication system, outlined various proposed solutions, and explained why an independent Article I immigration court would best improve the adjudication of immigration cases without making changes to substantive immigration law.

This legislation is a nonpartisan, good government proposal—the product of decades of collaboration between the FBA, the American Bar Association, the Association of Immigration Lawyers, and the NAIJ—aimed at separating the politics of immigration enforcement from the needs of immigration adjudication. As Stevens emphasized, “This is not a partisan issue… It has nothing to do with substantive immigration laws or broad immigration policy. Whatever the immigration laws are and whatever the policies that inform them, it is past time to lift the courts that apply them from ‘halfway there, not-quite-courts’ to true courts under Article I.”

There has been much attention in recent years on the immigration court backlog, which now stands at approximately 3.75 million cases3—up from 1.6 million cases in 2022. There has been much less focus, however, on the reasons the immigration adjudication system is so dysfunctional.

The Executive Office for Immigration Review (EOIR), which contains the immigration court structure, is housed within the DOJ. According to experts, including some leading FBA members, EOIR is a top-heavy bureaucracy, not a true court system. Headquarters programs drain resources that should be devoted to adjudication. In our half-formal, half-informal adjudication system, immigration judges have little control over their dockets and cannot use the contempt authority authorized by Congress. Each new administration pulls the 69 EOIR immigration courts from one political priority to another, crippling their efficiency and decimating due process. DOJ does not view Board of Immigration Appeals (BIA) members and immigration judges as independent judicial officers; indeed, they are subject to discipline if the attorney general disagrees with their decisions. The potential for political influence means they cannot ensure either due process or decisions made solely according to law. Moreover, a broad perception exists that the immigration courts merely rubber-stamp DHS actions. Because of this perception, individuals often do not pursue relief for which they might be eligible. It also leads to more petitions for review in the circuit courts, as the hope of impartial review in federal court postpones finality and undermines the authority of BIA determinations.

Rep. Lofgren’s bill would provide transparency regarding removal proceedings, judges’ conduct, and discipline. It would allow judges to manage their caseloads without undue pressure from the political branches and would free resources for much-needed modernization of video conferencing and electronic filing systems.

There is ample precedent for Congress to use its Article I power in this way. Congress has established inferior courts in other areas that involve executive policymaking and priority-setting that also require impartial adjudication. Specifically, the Tax Court, the Court of Appeals for Veterans Claims, and the Court of Appeals for the Armed Forces were initially created as internal components of civilian or military bureaucracies. In response to concerns about fairness and impartiality, Congress created independent courts outside those agencies and re-assigned the adjudicative functions to the new courts with no impact on the agencies’ policymaking, priority-setting, or other processes.

In crafting this solution, the FBA and other stakeholders considered alternative proposals, including the creation of a separate executive agency and moving immigration adjudications into the Article III court system. The former alternative would simply relocate but not eliminate the bureaucratic and political problems, and the Judicial Conference of the United States opposes the latter. Simply put, the best option is an independent immigration court.

Candidly, with Congress increasingly focused on midterm elections in November and several major items on its legislative to-do list—including FY 2027 appropriations, the annual defense authorization legislation, and Farm Bill program expirations—this bill’s prospects for enactment before the current Congress ends in January are not high. Still, when FBA members are communicating with members of their delegation about the FBA’s priorities, they can consider mentioning the Lofgren bill and encouraging members to review it as a means of setting the stage for potential consideration in the next Congress.

Endnotes

1 See Beltway Bulletin column in the Spring 2026 issue of The Federal

Lawyer.

2 The 2026 version includes one technical correction relating to

retirement pay for immigration judges.

3 https://www.justice.gov/eoir/pr/eoir-announces-significantimmigration-

court-milestones