Michigan Stadium Photo by Andrew Horne, Creative Commons License
Here’s the latest from TRAC Immigration:
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Quick takes:
- Even at this accelerated completion rate, on an annualized basis, I calculate that EOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
- At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
- Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
- Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
- Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
- Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022. https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
🇺🇸 Due Process Forever!
PWS
12-16-22
Can any configuration really stop growth of the backlog though? Its very cynical to hold the asylum cases, perhaps on the theory (once articukated by one of our former BIA colleagues, that protection may not be necessary for applicants from many countries after passage of time. Though that approach may afford employment authorization and temporary protection (and in some cases result in legalization via other means), it frustrates the goal if the Refugee Convention to offer permanent status in the country of protection to all Convention refugees.
Seems like a proper application of asylum law would result in more grants of asylum at the AO level and quicker movement of represented, well-documented asylum cases through the system. A “better BIA” could actually instruct AOs, IJs, and attorneys on how to recognize and grant protection in particular recurring situations.
Recent BIA asylum law is basically about how to “raise the bar,” nit-pick, and create endless “proof hurdles” so that almost every claim can be denied if the IJ is motivated to do so (notwithstanding cases like Cardoza, Mogharrabi, and Kasinga pointing toward a generous, practical interpretation of asylum law). And, since there is no accountability for IJs or Appellate IJs who repeatedly employ specious reasoning and wrong standards to deny asylum, a significant number of cases are “tossed” by the CAs, thus creating more backlog and Aimless Docket Reshuffling.
Better legal precedents from the BIA, combined with more realistic and robust refugee programs for major “sending countries” could also motivate a significant number of individuals to apply outside the U.S. Even if unsuccessful, they could more realistically assess the chances of gaining asylum at the border. Some might decide not to try their luck again.
Of course there is no single configuration that would automatically and overnight end backlogs. Some way of enforcing cooperation and “prosecutorial realism” from DHS is also required. But, I think that if better leadership and expert judges were empowered to use the law to solve problems, there would be at least a “decent shot” of eventually getting the system under control. It would at least be fairer, more functional, and more efficient than the current mess.
DPF!
P