http://immigrationimpact.com/2017/06/08/immigration-courts-backlog/
Tory Johnson writes in Immigration Impact:
“Anyone familiar with the immigration system knows that the immigration courts have an enormous backlog which has persisted—and grown—for more than a decade. As of April 2017, the immigration court backlog topped 585,930 cases, more than double the pending cases in fiscal year (FY) 2006 (212,000).
The immigration court backlog means that many people wait years to have their cases resolved. According to a June 2017 report from the Government Accountability Office (GAO), the average time a case remains pending with the Executive Office for Immigration Review (EOIR)—the office within the Department of Justice that adjudicates immigration cases—has increased. In FY 2006, cases took an average of 198 days to complete; now the average is 650 days.
For years government officials, external stakeholders, and others have attributed the growing backlog to staffing shortages, lack of resources, and changing priorities. GAO’s recent analysis affirms some of these problems, but found that average case completion times increased—from 43 days in FY 2006 to 286 days in FY 2015—even though the number of immigration judges increased by 17 percent in the last decade.
So what’s making cases take longer in immigration court, and contributing to the backlog?
In part, judges are taking more time to complete cases, especially as new hires get up to speed. Respondents to GAO’s investigation most commonly cited a lack of adequate staff as a cause of the backlog, but “immigration judges from five of the six courts [GAO] contacted also stated that they do not have sufficient time to conduct administrative tasks, such as case-related legal research or staying updated on changes to immigration law.”
Indeed, over the 10-year period, judges issued 54 percent more case continuances, or a temporary postponement of case proceedings, on their own volition—due to unplanned leave or insufficient time to complete a hearing, for example. Immigration judges may also grant a continuance to allow respondents time to obtain legal representation— since immigrants do not receive government-provided counsel— which demonstrably shortens the length of a case.
There is concern that the backlog may only worsen under the current administration. In order to carry out President Trump’s directives to ramp up immigration enforcement and deportations, the Justice Department has started relocating immigration judges. But transferring judges—many of whom have been reassigned to detention centers—for the purpose of speeding up immigration cases has alarmed immigration experts, who fear case delays will increase in immigration judges’ usual courts, adding to the backlog.
While the directives were not analyzed in GAO’s review, the report’s focus on systemic issues exacerbating the backlog makes the plans to shuffle judges to new courts all the more concerning.
GAO made 11 recommendations in the following areas that would “better position EOIR to address its case backlog and help improve the agency’s overall effectiveness and efficiency in carrying out its important mission.” The recommendations included implementing better workplace planning and hiring practices; building an electronic filing system with oversight and management mechanisms; video-teleconferencing (VTC) assessments to ensure neutral outcomes; and creating efficient management practices and comprehensive performance measures for all cases.
While some of these issues are being addressed—such as implementing a plan to streamline hiring—GAO found that the efforts EOIR cited do not fully address the concerns outlined in the report. In particular, EOIR is lacking comprehensive technological capabilities, data on VTC hearings, performance assessments, and short- and long-term plans for staffing needs created by the 39 percent of retirement-eligible immigration judges.
The shortcomings further demonstrate the GAO’s conclusion that EOIR is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases.
EOIR should take the GAO’s recommendations seriously and work to implement solutions—the fates of hundreds of thousands of people literally depend on it.”
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Sadly, the necessary changes are way beyond the capability of EOIR and the DOJ, particularly in light of current political leadership in the DOJ which seems determined to run the courts into the ground with ill-advised maximum enforcement initiatives and “aimless docket reshuffling.” EOIR has been an agency within the DOJ since 1983. It actually performs measurably worse today than it did in 2000. Expecting a “turnaround” within the DOJ is like expecting the Tooth Fairy to solve this problem.
You can check out my previous blog on the GAO report here:
Note that the GAO discusses independent structures for the U.S. Immigration Court, but does not include a particular recommendation on that point.
But, I have one! We need an independent United States Immigration Court now! Otherwise the Immigration Court’s “due process meltdown” is eventually going to paralyze a large segment of the U.S. justice system. Yes, folks, it’s that bad! Maybe even worse, since DOJ and EOIR are “circling the wagons” to avoid public scrutiny and accountability. Tell your legislative representatives that we need an independent court now!
PWS
06-14-17
Thanks for another very insightful post. And I agree that the necessary changes are beyond the capabilities of EOIR. Being something of an EOIR historian, it seemed that back in the 1970s (which actually predates the creation of EOIR), the NYC-based Chief IJ, William Fliegelman, and the INS District Counsel, Vinnie Schiano, found imaginative and innovative solutions (including the creation of the Master Calendar hearing) without really worrying too much about Main Justice’s approval.
Over 40 years later, EOIR is still using essentially the same system, in spite of significant changes in both the volume and nature of hearings. In the 1980s, IJs could actually conduct and complete 4 merits hearings in a day. That is unthinkable today; hearings have become much more drawn out affairs, with more frequent use of witnesses (including experts), a much higher volume of documents, more issues to address, and much lengthier and more detailed testimony. In the asylum context, attorneys must now address the 1 year filing issue (which requires witnesses and other evidence). The REAL ID Act requires more documents and witnesses to avoid a denial based on the failure to file a document or present a witness that was found to be available. CIMT determinations require much more analysis of a statute’s divisibility under the categorical and modified categorical approaches, often requiring the study of state jury instructions.
As an IJ, I would often receive requests for continuances from attorneys who had a criminal trial commencing across the street in State Supreme- there, a trial would start, and continue for as many days as it took to complete. In immigration court, a case is still assigned an (often unrealistic) time slot two years out, and if it is not completed, the next real opening is another two or more years in the future. In the meantime, a key individual might age out; or country conditions relevant to an asylum claim might change. IJs are therefore forced to try to jam cases into openings that don’t really exist, further exacerbating the logjam that you have described.
EOIR needs bold and imaginative leadership to actually create a system suited for today’s immigration courts. I don’t believe that the presently favored solution of simply hiring more judges is the answer.
I agree, Jeff. If the structure is broken, throwing more judges and cases into it isn’t going to solve the problem. Moreover, although judicial positions could be helpful, EOIR already has a consistency problem (“Refugee Roulette”) which is likely to become worse if more new judges are added without proper training and with a BIA that doesn’t do much to rein in judges who are applying an “overly restrictive standard.” As you have pointed out, better precedents on granting asylum could promote more asylum grants at the AO level, and in a properly functioning system could result in more stipulations that could shorten hearing time. The system might actually be better off investing in more JLCs, court clerks, and modern technology and docket management, rather than just putting more judges into a dysfunctional system. And, we badly need a method of getting aged cases which are unlikely ever to be tried off the docket. Legalization, TPS, going back to the “old cancellation,” a new NACARA, but something that recognizes that most of these folks in fact are productive members of our society and should be given some type of formal legal status.
Best,
Paul
In my class today, we had a presentation by Laura Tuell the pro bono coordinator at Jones Day who pointed out the many inefficiencies and poor procedures which affect Judges and counsel and prevent overall efficiency, Pro bono counsel could probably represent 20-25% more individuals in a system with better procedures and judicial administration. Judges want more pro bono representation, but the limitations of the system are preventing/discouraging it.
Best,
P