Taking Liberty Decisions Away from 'Imitation Judges'

Abstract

Immigration detention is punishment. Therefore, time-honored proposed solutions to fix the immigration adjudication system, such as converting immigration judges (which some have called “imitation judges”) into Administrative Law Judges or even creating an Article I Immigration Court, are insufficient for liberty decisions. This article proposes that Congress strip “imitation judges” of their authority to review decisions about physical liberty. Rather, such decisions should be entrusted to a magistrate judge, with review by an Article III judge. The procedures are already in place; Congress need look no further than the Bail Reform Act, which applies when a person is held awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. These decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit their role. The work of these courts has been laudable, but a better solution that reaches every immigration detainee is necessary. The Trump administration has threatened immigration judges’ independence at every turn. Congress, therefore, should prevent such “imitation judges” from wielding the extraordinary governmental power to take away physical liberty.