Here’s the Section of the House Appropriations Committee Report relating to EOIR and the U.S. Immigration Courts:
"EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
(INCLUDING TRANSFER OF FUNDS)
The Committee recommends $457,154,000 for the Executive
Office for Immigration Review (EOIR), of which $4,000,000 is
from immigration examination fees. The recommendation is
$29,003,000 above the request. The recommendation will support
25 additional immigration judge (IJ) teams. In addition, the
recommendation includes a $1,706,000 program increase for the
modernization of mission critical systems and a $5,727,000
program increase for infrastructure improvements. The
recommendation sustains the current legal orientation program
and related assistance, such as the information desk pilot. The
recommendation does not include any funding to establish or
fund a legal representation program.
Assuring immigration regulation helps optimize strong
enforcement.--The Committee is concerned with the pace of
hiring and onboarding Immigration Judges funded in fiscal years
2015 and 2016, and expects the Department to accelerate the
recruitment, background investigation and placement of IJ teams
to areas that have the highest workload. The Committee is
alarmed that despite the increased resources provided to EOIR
in fiscal years 2015 and 2016, the median days pending for a
detained immigration case is 71 days and the median days
pending for a non-detained case is 665 days. While the
Committee understands that factors outside the control of
Immigration Judges can affect case length, these median case
times are unacceptable. The Committee directs EOIR to establish
a goal that by the end of the fiscal year 2017 the median days
pending of detained cases be no longer than 60 days, and the
median length for non-detained cases be no longer than 365
days. To monitor the progress in this effort, the Committee
directs EOIR to continue to provide monthly reporting on EOIR
performance and IJ hiring as specified in the statement
accompanying the fiscal year 2016 Omnibus Appropriation Act.
Court space.--The recommendation fully funds the request
for additional court infrastructure and expects EOIR to use
these funds fully to ensure that additional IJ teams have the
necessary court space. However, the Committee is concerned that
EOIR is not using all available EOIR or Department of Homeland
Security (DHS) space. EOIR is directed to provide a report to
the Committee within 90 days of enactment of this Act outlining
its utilization of existing EOIR and DHS space and its plans
for acquiring additional space in order to accommodate
additional Immigration Judges.
Visa overstay cases.--The Committee directs EOIR to submit
a report, no less than 60 days after enactment of this act, and
monthly thereafter, detailing the number of instances of visa
overstay cases that have been adjudicated through the court
system, and recommend steps to take in coordination with other
agencies to streamline visa overstay adjudication procedures.
To better understand the policy and practice of immigration
courts in setting detainee bonds, the Committee directs the
Executive Office for Immigration Review (EOIR) to report within
120 days of enactment on how immigration judges use ``ability
to pay'' criteria in determining the amounts of bonds, and the
process for appealing such bond decisions. In addition, the
report should include for fiscal years 2012-2016 the number of
requests for reconsideration or appeals of bond amounts; how
many requests or appeals resulted in reductions in bonds; and
how many detainees did not pay bond set by an immigration
The complete Committee Report, H.R. Rep. No.114-605, is available here: https://www.congress.gov/congressional-report/114th-congress/house-report/605
And, here is the actual language from the Appropriations Bill:
“EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
(INCLUDING TRANSFER OF FUNDS)
This Act includes $440,000,000 for the Executive Office for Immigration Review (EOIR), of which $4,000,000 is derived by transfer from fee collections. This reflects funding for EOIR in a separate appropriation account, in lieu of being funded under the former Administrative Review and Appeals appropriation.
Within the funding provided, EOIR is directed to continue ongoing programs, continue the hiring process of new judges funded in fiscal year 2016, recruit and hire no fewer than 10 new Immigration Judge (IJ) Teams, and complete modernization of mission critical systems and improvements in infrastructure as described in the budget request.
Immigration Judge Hiring and Adjudication Backlog.-The Department shall accelerate its recruitment, background investigation, and placement of IJ teams and establish median days pending targets for cases (detained and non-detained) as specified in the House Report. For fiscal year 2017, EOIR shall continue to submit monthly performance and operating reports to the Committees on Appropriations, to include the status of its hiring and deployment of new IJ teams, in the format and level of detail provided in fiscal year 2016. In addition, not later than 60 days after the date of enactment of this Act, EOIR shall report to the Committees on Appropriations on visa overstay cases as directed in the House report.”
In the final version of the bill, Congress supported EOIR’s mission with increased resources.
Not surprisingly, the Committee was concerned about the glacial pace at which the DOJ hired new Immigration Judges authorized in FY 2015 & FY 2016. Attorney General Sessions says he has already taken steps to “streamline and expedite” IJ hiring, although I’m not aware of the details of the revised judicial hiring process.
The Committee was also critical of the failure of the
DOJ/EOIR to obtain sufficient space for additional Immigration Judges, noting that EOIR was not currently using all available space for Immigration Courtrooms.
Notwithstanding these problems, the bill provides for 10 additional Immigration Judge “Teams” (including support staff). This was in lieu of the 25 additional Immigration Judge Teams mentioned in the report.
The Committee was shocked by the “median times” for completing both detained (71 days) and non-detained (665 days) cases. It ordered EOIR to establish goals of 60 days median for detained cases and 365 days for non-detained cases.
The 60 day detained goals appears achievable, particularly because the Trump Administration is now diverting Immigration Court resources to the detained docket. However, the Administration’s apparent intent to increase both arrests and detentions could hamper that goal.
By contrast, the 365 day non-detained goal shows a massive disconnect in the Committee’s knowledge and understanding of the current Immigration Court system. With the backlog steadily rising under the Trump Administration to 570,000 cases, careening toward 600,000, with no end in sight, a 365 day “goal” is right out of “Never-Never Land.”
Indeed, reassigning Immigration Judges from the non-detained to the detained docket to achieve a 60 day median is likely to result in further deterioration in the 665 day median for non-detained cases. And, 10 new IJs, while certainly very welcome, are a mere drop in the bucket — unlikely to make any significant dent in the backlog or the median time for non-detained cases.
The only ways to cut the median for non-detained cases to anything approaching 365 days would be by 1) doubling the size of the Immigration Judiciary (now at approximately 305), or 2) cutting the Immigration Court’s docket in half.
The former simply is not feasible in the foreseeable future, particularly given the DOJ’s inability to fill currently vacant IJ positions and to make realistic plans for expansion of courtrooms.
The second alternative could be achieved, but not the way the Trump Administration is proceeding. Instead of “jacking up” arrests, detention, and court dockets, the Administration would have to exercise discretion to pull the vast majority of the 570,000 pending cases out of court and allow individuals without serious criminal records to remain in the U.S. Eventually, some type of legalization legislation would have to be developed with Congress.
Additionally, rather than expanding the priorities to include “almost anybody,” the Administration would have to further refine the Obama Administration priorities so that only those individuals convicted of serious crimes were targeted for removal proceedings.
The current system is heading for a massive “train wreck.” While the Committee’s support of the Immigration Courts is an important step in the right direction, it doesn’t come close to addressing the current dysfunctions at DHS and DOJ with respect to the Immigration Court system.
Finally, the Committee seemed interested in getting more information about the bond system in Immigration Court, with particular emphasis on whether and how Immigration Judges were considering “ability to pay” as part of the equation for setting bonds.