The United States’ immigration court system is located within the U.S. Department of Justice’s Executive Office for Immigration Review and operated under the power of the attorney general. Consequently, the attorney general can review and overrule decisions made by the Board of Immigration Appeals, the immigration appellate body. If the attorney general uses this authority, his decision cannot be reconsidered, and his opinion becomes precedent. Immigration courts are unique in that no other court system is located within or controlled by the executive branch. Focusing on key historical eras, this Comment compares the development of immigration law and policy with tax law and policy, two areas that are evolutionarily similar and continue to be highly charged politically. This Comment argues that Congress structured immigration court differently from tax court because of xenophobic sentiment and nativist practices that have been commonplace in American society and politics since its founding. Finally, this Comment uses tax court as a guide to restructure immigration court and make the necessary changes to establish constitutionality.
The Immigration Court System: Unconstitutionality at the Hands of the Executive to Push Nativism,
43 J. Nat’l Ass’n Admin. L. Judiciary
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