Nolan writes:
. . . .
But here’s a better reason to oppose the quotas: Session’s performance goals are not an effective way to deal with the backlog crisis.
As of March 5, 2018, there were approximately 350 judges, and the immigration court had 684,583 pending deportation cases.
If the judges do 700 cases-a-year, it will only dispose of approximately 245,000 cases-a-year. At that rate, it would take almost three years to eliminate the backlog … if there are no new cases. But there will always be new cases.
Sessions also will hire more judges, but the problems the immigration court is having with the current judges should be addressed first to determine whether the selection process needs to be changed.
From FY2013 through FY2017, 379 complaints were filed against the judges, approximately 30 percent of the judges every year!
Also, there are gross disparities in the way the judges are applying the law.
TRAC Immigrationreports that the outcome at asylum hearings over a six-year period depended largely on which judge was assigned to the case.
For the 6,922 asylum seekers whose applications were adjudicated at the San Francisco Immigration Court, the likelihood of a denial varied from only 9.4 percent up to 97.1 percent, depending on which judge handled the case.
For the 1,233 individuals whose cases were heard at the Newark Immigration Court, the likelihood of a denial ranged from 10.9 percent up to 98.7 percent, depending on which judge handled the case.
In other words, the likelihood of being granted asylum in these courts could be as high as 90 percent or as low as 3 percent, depending upon which judge handles the case.
According to a Reuters report on disparities in how frequently immigrants are deported in removal proceedings, “the findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.”
GAO makes similar findings in its November 2016 report on variations in the outcomes of applications across immigration courts and judges. GAO also found that judges with 7 years of experience were 28 percent less likely to grant asylum than less experienced judges, which could be a factor in explaining the disparities.
Are unqualified judges being hired? Is the training program for new judges inadequate?
To some extent, the problem may be due to misconduct on the part of officials involved in the selection process.
For instance, in 2004, the Justice Department paid $11.5 million to settle a class action suit claiming that the immigration judge hiring practices of the Executive Officer for Immigration Review were discriminatory. Four years later, Monica Goodling from the Office of the Attorney General admitted that she had taken political considerations into account in soliciting candidates and reviewing applications.
In any case, it is apparent that Sessions isn’t going to eliminate the backlog crisis by setting performance goals or hiring more judges. He has to reduce the number of cases the immigration court has to handle.”
. . . .
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Read Nolan’s complete article over on The Hill at the link.
Nolan’s points are well taken! He’s asking the types of obvious questions that folks genuinely interested in fixing this system should be asking. But, significantly, Jeff Sessions isn’t asking those types of questions!
The current Immigration Court system needs thoughtful quality control and due process targeted reforms on many levels, including a real merit-based hiring system — preferably run by the Article III Federal Courts. After all, the Federal Courts are the “ultimate consumers” of the Immigration Court’s work product.
According to the recent GAO study, it currently takes an average of two years — fully half of an Administration — to hire an Immigration Judge! That’s longer than the Senate confirmation process!
Sessions has promised but not delivered on yet another bureaucratic opaque system that would supposedly reduce the hiring cycle to 10 months, still ridiculously long. At most, IJ hiring should be on a 3-6 month cycle.
By comparison, in 1995 when I was hired, then EOIR Director Tony Moscato and Attorney General Reno had the Chairman and eight additional Board Members (“Appellate Immigration Judges”) hired, background cleared, and actually on board within a six month period — even though it involved a regulations change to increase the number of Board Members.
And, it’s certainly not that the current process produces remarkable results in terms of either diversity or background. Nearly 90% of the Immigration Judges hired over the past 10 years have come from very similar government backgrounds — mostly DHS and DOJ attorneys.
Attorneys from the private sector and academia, even those with superior qualifications, effectively have been systematically excluded from the 21st Century Immigration Judiciary. As Nolan pints out, the system cries out for judges of the highest caliber and universal reputations for fairness and scholarship as well as the ability to deal in an effective professional manner with the many “performing artist” aspects of running a fair courtroom in a stressful high volume system.
Additionally, a comprehensive 2016 report by Human Rights First (“HRF”) found that the appropriate number of case completions per Immigration Judge should be no more than 500 per judge to produce fair, high quality decisions that would meet the criteria for judicial review. So, why, without even referencing that report or reaching out to HRF, would Sessions & Co. create a “quota” that is 140% of that optimum number?
Here’s a link to the HRF Report:
How is this about building a real due process court system rather than a “deportation railroad?” Obviously, Sessions is only interested in the latter.
HRF actually went to experts involved in the Immigration Court system. Sessions, who has never been an Immigration Judge and disrespects most of those actually involved in the system, apparently invented his “quotas” without any meaningful input from any of the folks who actually work in and use the system.
As Nolan points out, the “wheels are coming off” the Immigration Court system. Mindless, “haste makes waste,” just pedal faster” invectives from Sessions can’t and won’t solve the problem.
That’s why Congress must create an independent Article I U.S. Immigration Court — devoted to the only true purpose any court system can have: guaranteeing fairness and due process for all individuals appearing before it! That has nothing whatsoever to do with fake assembly line “production quotas!”
PWS
04-04-18