http://www.fedbar.org/Publications/The-Federal-Lawyer/Columns/Immigration-Law-Update.aspx?FT=.pdf
Recently, the White House announced that it sought to reduce the current immigration court backlog by requesting appropriations for additional immigration judges and instituting performance metrics for all immigration judges.1 Sen. Claire McCaskill and Reps. Jim Sensenbrenner, Zoe Lofgren, and Trey Gowdy asked the General Accountability Office (GAO) the following questions: 1. What do Executive Office for Immigration Review (EOIR) data indicate about its caseload, including the backlog of cases, and potential contributing factors and effects of the backlog according to stakeholders? 2. How does EOIR manage and oversee immigration court operations, including workforce planning, hiring, and technology utilization? 3. To what extent has EOIR assessed immigration court performance, including analyzing relevant information, such as data on case continuances? 4. What scenarios have been proposed for restructuring EOIR’s immigration court system and what reasons have been offered for or against these proposals?2
A close read of the GAO’s report provides a chilling window into a system in chaos.
. . . .
Moving the immigration courts out of the executive branch
would help alleviate the perception that they are not independent tribunals with DHS and the respondents as equal participants. This would also cure the perception that the immigration courts have become so politicized that decisions change not with the law but with the politics of the current administration. Moreover, due to
the number of immigration judges who are former DHS attorneys and the co-location of some immigration courts with Immigration and Customs Enforcement offices, a broad perception exists that immigration judges and DHS attorneys are working together. This perception leads to significant lapses in perceived due process; for example, individuals don’t appear because they think the system is rigged, don’t appeal a bad decision because they lack resources after the long wait for a merits hearing, or don’t pursue potential relief for which they might be eligible. Plus, such a move would allow DHS the opportunity to appeal the Article I appellate division’s decisions to the circuit courts of appeals—providing those courts with a broader, more balanced view of issues and decisions of the trial-level immigration court.21 EOIR’s FY 2016 Statistics Yearbook indicates that one quarter of the initial cases decided were grants—none of which were ever reviewed by the courts of appeals.22With a move to an Article I court, both trial level and appellate di- vision judges would have fixed terms of office and tenure protections that would facilitate judicial decisions without fear or favor. (If one believes that current members of the Board of Immigration Appeals are truly independent, one should research the “streamlining” of
the board down to just 11 members.23) Current board members and immigration judges are arguably government attorneys with the same client as DHS attorneys.24 They are subject to case completion goals—with or without express reliance on numerical goals—and may be subject to discipline by the attorney general.25 The currently proposed performance metrics are not new—most have been in place in one form or another since 2002.26Last but not least, removing the immigration courts from the Department of Justice should speed the courts’ ability to regulate itself. First and foremost, the individual immigration judges would have control over their dockets and not be subject to decisions by headquarters to prioritize case A over case B (and then back again)—or send trial judges off to border courts to handle a few cases when their backlogged dockets have to be re-scheduled.27 The Article I court as a whole would be able to issue rules and regulations without the current byzantine requirements for consultation with a number of different offices and agencies. And, finally, hiring an immigration trial judge would not take two years.28
Other options exist; all have flaws. None of the options will single-handedly fix the backlog. We all have strong opinions about whether our nation’s immigration laws need a complete overhaul or a quick x—and how to go about either or both—but as we look to implement changes in our current immigration system, we must also aspire to lift the immigration courts from “halfway there” not-quite- courts to true Article I courts.
[Text of Footnotes Omitted]
Elizabeth J. Stevens is
the chair of the Federal
Bar Association’s Immi-
gration Law Section.
***********************************
Read Betty’s highly cogent and incisive full article in The Federal Lawyer at the link! You’ll also be able to get all of Betty’s terrifically informative footnotes.
Betty is not just “any” lawyer. In addition to being the head of the FBA’s highly regarded and very active Immigration Law Section, Betty’s distinguished career in the Department of Justice has touched on all aspects of the Immigration Court practice.
While in law school at George Mason, Betty interned at the Board of Immigration Appeals during my tenure there. When I arrived at the Arlington Immigration Court, Betty was serving as the sole Judicial Law Clerk for all six Immigration Judges.
Betty then began a distinguished career at the Office of Immigration Litigation (“OIL”) where her primary job was to defend the orders of the Board of Immigration Appeals. She had a meteoric rise through the ranks of OIL, culminating in position as a Senior Supervisor and a trainer of newer OIL attorneys.
I well remember Betty shepherding numberous groups from OIL over to the Arlington Court to introduce them to immigration litigation at the “retail level of our justice system.” Since her retirement from Federal Service, Betty has been an energetic, well-informed, and steadfast voice for better legal education of attorneys on both sides practicing immigration law and for Immigration Court and BIA reform.
“Chilling” is exactly the right word to describe the utter chaos in our U.S. Immigration Courts today, as the backlog approaches 700,000 cases with no end in sight. It’s “chilling” to the individual Constitutional rights of all Americans, as well as “chilling” as to the fantastic degree of “malicious incompetence” of the DOJ’s pathetic attempt to administer the Immigration Courts under Jeff Sessions.
Betty is someone who has “looked at life from both sides now!” When Betty Stevens says the system is broken and “in chaos,” you’d better believe it’s true! Thanks again Betty for all you do! It’s an honor and a privilege to work with you on the “Due Process Team.”
PWS
04-01-18
I have two reservations about Betty’s proposal.
First, how would the creation of an Article 1 immigration court eliminate the immigration court backlog crisis? There is an urgent need to address that crisis. And not incrementally.
Second, why would Congress pass a bill to create an Article 1 immigration court without assurance that it would eliminate the backlog crisis?
Due Process isn’t solely about backlog elimination. It’s about fundamental fairness. That’s something that should be bipartisan, but actually might not be.
As Betty points out, an Article I court won’t solve all problems overnight. These problems were caused by political officials misusing the system over many years and a number of Administrations of both parties; poor legislative choices by Congress; and bad enforcement policies by DHS spanning many years. It’s unrealistic to think that any single change can quickly eliminate a problem created over decades. But, a real court system is a great place to start. And, I suspect that with independent judges in charge of their own dockets the backlog won’t grow as quickly and mights actually start to diminish in some cases.
Having an independent system where judges, not politicians, control the docket is a good start toward a more efficient system. And, over time, a more independent court system is likely to make some of the current DHS policies and interpretations of law untenable. That in and of itself will eventually require the DHS to act more like other law enforcement agencies and to exercise prosecutorial discretion more frequently and more wisely as well as to abandon some if its more extreme misinterpretations of the law.
Turning your question around, how is the current system, which is well on its way to implosion and failure, going to help anyone? The DHS will have difficulty removing anyone except those recent arrivals subject to “expedited removal;” individuals who should be granted relief and allowed to stay will remain in limbo and “on the docket;” and folks who should be removed are likely to remain because the system to remove them won’t function. That’s a “lose, lose, lose” and a real disaster for everyone including DHS enforcement.
The only plausible solution to the current backlog eventually will be a needed legalization of most of those now nominally here without documents but who are in fact part of and contributing to our society. That would allow the system to start over with the much smaller number who actually should be removed as well as new arrivals. And, the number of new undocumented arrivals would be diminished significantly if Congress enacted an expanded legal immigration system that actually met market needs, rather than working at cross purposes to the market.
Best,
P
I don’t have to suggest a better solution. I’m not trying to establish an Article 1 court. Betty is. And she won’t make that happen by persuading you or other readers of your blog that it is a good idea. She has to persuade Congress that it is a good idea, and I am absolutely sure that they won’t be interested in an Article 1 proposal that doesn’t include assurances that creating this new court would eliminate the backlog crisis.
For sure, the proponents of Article I will have to convince folks “OTM” (“Other than Me”) and others like me that it’s a good idea! But, I think Betty and her group at the FBA along with the ABA are up to the job, although admittedly it’s likely to be a “long haul.”
That’s exactly why I think that it’s important that someone like Betty who isn’t an “EOIR insider” or a “lifetime immigrants’ rights advocate,” but who does understand the system from the standpoint of a litigator whose primary work was defending DHS removal orders in in Federal Court, is spearheading the effort.
I have no doubt that Trump and Sessions will try to short-circuit Due Process and the Immigration Court system in every way possible. But, they are unlikely to get away with it to the extent necessary to remove lots more folks, let alone 11 million.
And the burden might not all be on the “reformers” as you suggest. My prediction is that if Congress doesn’t step in and solve this problem in a way that complies with Due Process, the Federal Courts eventually will, even if reluctantly.
Even very conservative Federal Judges have standards below which they won’t “go along to get along,” nor will they put up with the type of “bullying” that Trump and Sessions think they can inflict on everyone who disagrees with their warped views of the law. As I have pointed out before, we know from recent history that a number of the Federal Judges who spoke out and helped put an end to the disaster caused by Ashcroft’s attempt to railroad folks out of the country without due process were actually GOP appointees.
If Congress won’t do Article I, the system is going to essentially end up in “Federal Court receivership,” much like some of the Southern School Systems following Brown. If Congress won’t do their job, Federal Judges probably will. And, the results might not be that happy for Congress.
If I were in Congress, I’d prefer a well-designed congressional fix rather than one imposed by the courts. But, the current system can’t continue under its current structure and (non) leadership, and nobody can eliminate this backlog overnight in a manner that complies with due process.
There is no judicial system in existence capable of handling 700,000 cases quickly and in accordance with due process. Building a better and more efficient court system is a start on what must be an incremental process. But, ultimately, Congress will have to address the huge number of American residents here without documents in a humane or realistic way or just live with the existence of a huge extra-legal community.
Either way, I doubt that Due Process will permit mass removals without any individualized consideration. We’d all better hope that it doesn’t, because if it does then none of our constitutional rights will have any meaning for any of us citizen or not.
Best,
P
My prediction is that Trump will find a way to deport more aliens without hearings.
For a more complete statement of my views on the immigration court backlog crisis, see my article, “Our immigration courts are drowning, expedited removal can bring relief, ” at
http://thehill.com/opinion/immigration/360139-our-immigration-courts-are-drowning-expedited-removal-can-bring-relief