Category: Matter of J-A-B- & I-J-V-A-

“An Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.”

PANEL: Appellate Immigration Judge MALPHRUS, MULLANE, and CREPPY

OPINION BY: Judge Malphrus

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Most “real” courts reserve to themselves some authority to return, remand, or otherwise force action on the part of parties. For example, when the Obama Administration announced an expanded “Prosecutorial Discretion”  (“PD”) program, at least one Court of Appeals required that the Government review each case on their Petition for Review docket and state in advance whether or not it intended to exercise “PD.” Those PD cases were then “un-docketed” by the Article III Court.

Given the huge backlogs for new non-detained asylum cases in most U.S. Immigration Courts, allowing Immigration Judges on a case-by-case basis to require the DHS to decide whether or not they would grant asylum before proceeding to place a case on an overcrowded “Individual Hearing” docket makes lots of sense to me. Perhaps one reason that the Immigration Court docket is in such bad shape is that DOJ and EOIR routinely allow themselves to be “pushed around” by DHS in ways that few other courts would tolerate from a Government party.

If any independent party ever did a detailed analysis of the “Immigration Court Backlog,” I’m betting that they would find a significant number of cases being “warehoused” by EOIR for the DHS. These are cases that could and should have been resolved favorably to the Respondent by the DHS without a trip to Immigration court. But, a rational approach to the backlog is not going to happen with the current Administration’s “Gonzo” enforcement policies and a “captive” Immigration Court system .