Here’s the letter to Judge Garland:

April 30, 2021
The Honorable Merrick B. Garland Attorney General of the United States U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001

RE: U.S. Department of Justice Authority to Remove Non-Priority Cases from the Active Docket of the Nation’s Immigration Courts

To Attorney General Garland:

As immigration law teachers and scholars, we write to express our opinion on the scope of executive branch legal authority for the Executive Office for Immigration Review (EOIR) to utilize well-established administrative tools to address the historic backlog of cases pending in immigration courts. Each case in the backlog involves an immigrant, many waiting for years to have a “day in court” to defend against charges of removability or to have an application for relief adjudicated. The Attorney General, through EOIR, has the authority to address the immigration court backlog by rapidly and systemically removing nonpriority cases from the active docket.1

For years, the immigration court docket remained relatively steady, hovering between 100,000 and 200,000 cases.2 During the Obama administration, however, the system began to accumulate a substantial backlog, eventually rising to over 500,000 cases.3 These numbers continued to spike during the Trump administration. Currently, the immigration court backlog sits at 1.3 million cases,4 which Lisa Monaco, President Biden’s nominee for Deputy Attorney General, has acknowledged is a “direct impediment to a fair and effective system.”5 Addressing the immigration court backlog is critical to restoring the integrity of the immigration court system.

As a consequence of the immigration court backlog, the average wait time for respondents’ next immigration court hearing, measured from the time a case entered the immigration court docket, is now over 1,600 days.6 Less than 50% of all cases now pending in the immigration backlog are even set for an individual merits hearing, which means many cases will require subsequent hearings, resulting in additional delay.7 This backlog impedes the proper functioning of the immigration court system and its ability to dispense justice. It also undermines core administrative law values that include but are not limited to consistency, efficiency, public acceptability, and transparency.

The immigration backlog also impacts immigration judges, who face crushing caseloads, now approaching 3,000 cases per judge.8 Such caseloads undermine the ability of immigration judges to reliably and competently complete the complex legal analysis and careful credibility and discretionary determinations that removal cases demand.9 The backlog also harms immigrants, who face years of legal limbo while their cases are pending. This legal limbo can be destabilizing to families and communities and delay immigrants’ access to the legal status many are ultimately granted.
AILA Doc. No. 21050334. (Posted 5/3/21)

The Attorney General has the legal authority to create a more functional and fair immigration court system, using existing tools of discretion and deferred adjudication. Specifically, the EOIR has the authority under regulations to identify and defer the adjudication of nonpriority cases. The EOIR Director has clear authority to defer adjudication of cases pursuant to 8 C.F.R. § 1003.0(b)(1)(ii). Specifically, the Director has the “power, in his discretion, to set priorities or time frames for the resolution of cases [and] to direct that the adjudication of certain cases be deferred…”10 Further, the Director has the authority to “issue operational instructions on policy” pursuant to 8 C.F.R. § 1003.0(b)(1). The Attorney General also has broad discretionary authority pursuant to 8 U.S.C. § 1103(g) to “issue such instructions, . . . delegate such authority, and perform such other acts as the Attorney General determines to be necessary” for the administration of the nation’s immigration courts.11

The use of deferral authority is not merely theoretical. Systemwide deferrals have recently been implemented by EOIR leadership through policy memorandum.12 Deferral acts as a pause in adjudication, akin to the historic use of the status docket, as opposed to a final resolution.13 Indeed, the deferral mechanism can be used as an alternative to the status docket, grounded more firmly in the regulatory scheme, or in tandem, such that deferred cases are placed on the status docket to free up capacity for priority cases. At a future point in time, deferred cases could be recalendared when a determination is made as to the appropriate path to final resolution.14 Based on current agency authority, termination, generally requires a legal deficiency;15 dismissal, generally requires a motion from DHS;16 and administrative closure, is severely constrained.17 However, deferral power remains available as a mechanism that EOIR leadership can independently and immediately deploy at its discretion. Removing nonpriority cases from the immigration courts’ active docket will substantially improve the functioning of the courts and shrink the proverbial haystack, thereby allowing immigration judges to fairly and expeditiously adjudicate priority cases.

Less than one percent of the cases in the EOIR backlog satisfy the Biden administration’s current enforcement priorities.18 Accordingly, consistent with the administration’s own priorities, EOIR could exercise its discretion to defer nonpriority immigration cases. As a first step, EOIR could establish categories of nonpriority cases that can be identified and deferred at a headquarters level without the need for a case-by-case file review.19 This is the path recently recommended by a group of United States Senators and over 150 leading immigration, civil rights, and human rights organizations.20 These Senators and organizations have proposed specific categories of such nonpriority cases that could be systematically identified through existing EOIR data, including: cases that have been pending for more than five years and cases that involve respondents who have potential affirmative pathways to status, such as applications for adjustment of status or new asylum claims, that could be adjudicated by the USCIS.21 These are non-exhaustive examples of the types of nonpriority cases that could be systematically identified and deferred. EOIR should explore these and other similarly identifiable nonpriority categories.

This letter outlines the legal foundation and method by which the Attorney General can restore the fairness and integrity of the nation’s immigration courts. The legal authority, under the existing statutory and regulatory framework, to remove nonpriority cases from the active docket of the immigration courts is clear. Thank you for your attention. For any follow up inquiries, please contact Professor Peter L. Markowitz at peter.marowitz@yu.edu or at 646-592-6537. _____________________________________________________________________________
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1 While this letter focuses on EOIR’s authority to manage the court docket, we do not mean to suggest that the Department of Homeland Security (DHS) does not play an important corresponding role in establishing enforcement policies and priorities for the initiation and resolution of proceedings. In fact, DHS has exclusive authority to decide whether to institute proceedings, see Matter of W-Y-U-, 27 I. & N. Dec. 17, 19 (BIA 2017) and, as noted infra note 21, DHS’s discretion to dismiss removal proceedings could also play a critical role in permanently removing nonpriority cases from the immigration court docket.
2 TRAC Immigration, Backlog of Pending Cases in Immigration Courts (data through Feb. 2021), https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.
3 Id.
4 Id.
5 The Nomination of the Honorable Lisa Oudens Monaco to be Deputy Attorney General Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Lisa Oudens Monaco).
6 TRAC Immigration, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts (data through Feb. 2021) [hereinafter “TRAC, The State of the Immigration Courts”], https://trac.syr.edu/immigration/reports/637/#f1.9.
7 Id.
8 According to EOIR, there are approximately 466 immigration judges nationwide sharing the 1.3 million cases. EOIR, Adjudication Statistics, Immigration Judge (IJ) Hiring (Jan. 2020), https://www.justice.gov/eoir/page/file/1104846/download. However, an unknown number of these judges serve in an administrative capacity and thus do not carry a docket of their own. TRAC Immigration, Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times (data through Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579/. The crushing caseloads are driving many experienced immigration judges to leave EOIR, further exacerbating the backlog. Amulya Shankar, Why US Immigration Judges Are Leaving the Bench In Record Numbers, THE WORLD (July 20, 2020), https://www.pri.org/stories/2020-07-20/why-us- immigration-judges-are-leaving-bench-record-numbers (interview with former Immigration Judge Ashley Tabaddor, then president of the National Association of Immigration Judges).
9 See Quinteros v. Att’y Gen. of United States, 945 F.3d 772, 794 (3d Cir. 2019) (McKee, J. concurring) (acknowledging the “incredible caseload foisted upon [immigration courts]” and how immigration judges being “horrendously overworked” contributes to the denial of fair and impartial hearings); Chavarria-Reyes v. Lynch, 845 F.3d 275, 280 (7th Cir. 2016) (J., Posner dissenting) (noting how “crushing workloads” cause immigration judges to routinely “botch” cases); United States Government Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges 30-1 (June 2017), https://www.gao.gov/assets/gao-17-438.pdf (reporting that increased caseloads have prevented immigration judges from “conduct[ing] administrative tasks, such as case-related legal research or staying updated on changes to immigration law”); see also Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, N.Y. TIMES (Dec. 1, 2016), www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases- stall-for-years-begin-to-buckle.html?_r=0.
10 8 C.F.R. § 1003.0(b)(1)(ii). This management authority can also be exercised by the Chairman of the Board of Immigration Appeals (BIA) and the Chief Immigration Judge. 8 C.F.R. §§ 1003.1(a)(2)(i)(C), 1003.9(b)(3) (identifying the similar subordinate authority of the Chairman of the BIA and the Chief Immigration Judge).
11 See also, 8 U.S.C. § 1103(a)(1) (reserving to the Attorney General certain powers related to the “administration and enforcement of . . . laws relating to the immigration and naturalization of aliens”); 6 U.S.C. § 521(“[T]he Executive Office for Immigration Review . . . shall be subject to the direction and regulation of the Attorney General”).
12 See e.g., EOIR, Policy Memorandum: Immigration Court Practices During The Declared National Emergency Concerning the COVID-19 Outbreak, PM 20-10, fn.2 (Mar. 18, 2020), available at https://www.justice.gov/eoir/file/1259226/download (deferring all non-detained cases at the outset of the pandemic for a limited period of time); EOIR, Notice: Executive Office for Immigration Review Operation During Lapse in Government Funding (Oct. 1, 2013), available at https://www.justice.gov/eoir/legacy/2013/10/24/Shutdown09302013.pdf (deferring all non-detained cases during government shutdown).
13 See Memorandum from EOIR Director James R. McHenry III, EOIR Policy for Use of Status Dockets in Immigration Court Proceedings (Aug. 16, 2019), https://www.justice.gov/eoir/page/file/1196336/download (explaining how “[v]arious types of status dockets under different labels have existed at individual immigration
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courts for many years”). While the McHenry Memorandum established historically narrow criteria for use of the status docket, the parameters for such use have been subject to change as a matter of administration policy. Id.
14 Such eventual pathways may include later individualized determinations to administratively close or dismiss cases or to return them to the active docket, once capacity exists, for full adjudication. Notably, while individuals await final resolution, a deferral order, like administrative closure, would neither confer nor disturb respondents’ entitlement to work authorization.
15 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465-67 (A.G. 2018). But see, e.g., 8 C.F.R. § 214.14(c)(1)(i) (providing for termination pursuant to joint motion for adjudication of a U visa); 8 C.F.R. § 1245.13(l) (providing for termination upon the of adjustment of status to certain Cubans and Nicaraguans); 8 C.F.R. § 1239.2(f) (providing for termination to pursue naturalization in certain circumstances).
16 8 C.F.R. § 239.2(c); 8 C.F.R. § 1239.2(c); see also Matter of S-O-G- & F-D-B-, 27 I&N Dec. at 466.
17 8 C.F.R. § 1003.10(b); see also Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). Ultimately, EOIR should individually evaluate all pending cases to determine whether they meet the administration’s priorities. To achieve this, the Attorney General should also ensure that immigration judges have the ability to prioritize their cases and “exercise their independent judgment and discretion.” 8 C.F.R. § 1003.10(b). Indeed, you were clear in your confirmation hearing that the solution to the immigration court backlog must include “some ability to give to the judges to prioritize their cases.” The Nomination of the Honorable Merrick Brian Garland to be Attorney General of the United States: Day 1 Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Merrick B. Garland). The primary tool used by immigration judges to remove cases from the active docket has historically been “administrative closure.” However, this authority was recently and imprudently curtailed, such that § 1003.10(b) now divests judges of administrative closure authority. See also Matter of Castro-Tum, supra. You can reaffirm and restore the authority for all immigration judges to administratively close nonpriority cases on a case-by-case basis. We express no opinion herein on the merits of current agency precedent regarding termination or dismissal but note that such precedent is subject to your review and could potentially be expanded in the future.
18 There are currently three enforcement priorities: (1) people suspected of engaging in terrorism or who pose a national security threat; (2) people apprehended at the border after November 1, 2020; and (3) people deemed to be a public safety threat, which includes primarily certain individuals with aggravated felony convictions. Memorandum from ICE Acting Director Tae Johnson, Interim Guidance: Civil Enforcement and Removal Guidance (Feb. 18, 2021), https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim- guidance.pdf. Out of the 1.3 million people with cases pending in immigration court right now: less than 100 have any type of terrorism or national security charge, virtually all had cases initiated before November 1, 2020, and less than 0.01% involve aggravated felony charges. TRAC, The State of the Immigration Courts, supra note 6. There is no publicly available data on the number of cases that would fall within the new narrowed gang-based public safety priority group, but it is doubtful this category would substantially increase the percentage of priority cases since less than 0.01% of all cases involve any type of criminal removal ground.
19 While it is critical that such cases can be systematically identified this does not mean that consideration of individualized circumstances is foreclosed. Notices of intent to defer could permit respondents to lodge objections if they would be prejudiced by deferral and DHS attorneys to object if it believes a respondent’s case is not appropriate for deferral. Indeed, deferral could act to facilitate individualized prosecutorial discretion determinations, if DHS coordinates to consider whether deferred cases are appropriate for dismissal, and if affirmative applications in deferred cases are ultimately processed by U.S. Citizenship and Immigration Services (USCIS).
20 Letter from Eight U.S. Senators to Attorney General Garland (Mar. 23, 2021), https://www.aila.org/File/DownloadEmbeddedFile/88403; Letter from 165 Organizations to President Biden (Feb. 1, 2021), https://www.aila.org/advo-media/aila-correspondence/2021/aila-and-partners-send-letter-to-president-biden. 21 For the affirmative pathway to ultimately be realized, in most instances, the removal proceedings will eventually need to be dismissed or terminated. In this regard, DOJ should coordinate its docket review effort with DHS. DHS has the authority to move to dismiss such cases, and immigration judges have the authority to dismiss such cases, because the notice to appear was “improvidently issued” or continuation is “no longer in the best interest of the government.” 8 C.F.R. § 239.2(c) (permitting DHS to move to dismiss any case where the notice to appear was “improvidently issued” or where “continuation is no longer in the best interest of the government” (incorporating grounds enumerated in 8 C.F.R. § 239.2(a))); 8 C.F.R. § 1239.2 (same); see also Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. at 464 (reaffirming DHS authority to move to dismiss on such bases). Indeed, DHS has previously made clear that when relief is “appropriate for adjudication by [US]CIS” DHS attorneys “should consider moving to dismiss proceedings.” Memorandum from William J. Howard, U.S. Immigration and Customs Enforcement, Principle Legal Advisor, Prosecutorial Discretion, (Oct. 24, 2005), AILA Doc. No. 06050511.
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AILA Doc. No. 21050334. (Posted 5/3/21)

Cori Alonso-Yoder
Visiting Professor of Law & Director of the Federal Legislation Clinic Georgetown University Law Center
Jojo Annobil Adjunct Professor NYU School of law
Lauren Aronson
Associate Clinical Professor, Director Immigration Law Clinic University of Illinois, Champaign/Urbana
David Baluarte
Associate Dean for Academic Affairs Washington and Lee University School of Law
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law
David Bedingfield
Visiting Professor Florida State University College of Law Florida State University
Lenni Benson
Distinguish Professor of Immigration and Human Rights Law New York Law School
Kaci Bishop
Clinical Professor of Law
The University of North Carolina School of Law
Linda Bosniak Distinguished Professor Rutgers Law School
Stella Burch Elias
Professor of Law
University of Iowa College of Law
Jason Cade
Associate Dean for Clinical Programs and Experiential Learning J. Alton Hosch Associate Professor of Law
Director, Community Health Law Partnership Clinic
University of Georgia School of Law
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Kristina Campbell
Professor of Law
UDC David A Clarke School of Law
Stacy Caplow Professor of Law Brooklyn Law School
Violeta Chapin
Clinical Professor of Law University of Colorado Law School
Michael Churgin
Raybournee Thompson Centennial Professor in Law University of Texas at Austin
Julie Dahlstrom
Clinical Associate Professor Boston University School of Law
Alina Das
Professor of Clinical Law
New York University School of Law
Ingrid Eagly Professor of Law UCLA School of Law
Bram Elias
Clinical Professor
University of Iowa College of Law
Kate Evans
Clinical Professor of Law
Duke University School of Law
Jill Family
Commonwealth Professor of Law and Government Widener University Commonwealth Law School
Paula Galowitz
Clinical Professor of Law Emerita New York University School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)

Denise Gilman
Director, Immigration Clinic University of Texas School of Law
Lindsay Harris
Associate Professor,
Director, Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law
Laura Hernandez Professor of Law Baylor Law School
Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law
Geoffrey Hoffman
Director, Immigration Clinic University of Houston Law Center
Alan Hyde Distinguished Professor Rutgers Law School
Anil Kalhan
Professor of Law
Drexel University Kline School of Law
Kathleen Kim
Associate Dean and Professor of Law LMU Loyola Law School, Los Angeles
Jennifer Koh
Visiting Lecturer
University of Washington School of Law
Yoana Kuzmova
Staff Attorney Northeast Justice Center
Eunice Lee
Associate Professor of Law
University of Arizona James E. Rogers College of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)

Lynn Marcus
Clinical Law Professor
Director, Community Immigration Law Placement Clinic University of Arizona James E. Rogers College of Law
Peter L. Markowitz
Professor of Law
Benjamin N. Cardozo School of Law
Fatma Marouf
Professor of Law
Texas A&M School of Law
Amelia McGowan
Adjunct Professor, Immigration Clinic Mississippi College School of Law
M Isabel
Medina Ferris Distinguished Professor of Law Loyola University New Orleans College of Law
Jennifer Moore
Professor of Law and Pamela Minzner Chair in Professionalism University of New Mexico School of Law
Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Director, Immigrants’ Rights Clinic Columbia Law School
Raquel Muñiz Assistant Professor Boston College
Natalie Nanasi
Assistant Professor
SMU Dedman School of Law
Lindsay Nash
Clinical Assistant Professor of Law Benjamin N. Cardozo School of Law
Lori Nessel
Professor of Law
Seton Hall University School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)

Mauricio Noroña
Clinical Teaching Fellow
Benjamin N. Cardozo School of Law
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Houston Law Center
Maria Pabon
Professor of Law Loyola College of Law
John Palmer
Professor Agregat Interí Universitat Pompeu Fabra
Reena Parikh
Assistant Clinical Professor Boston College Law School
Helen Parsonage
Adjunct Professor of Immigration Law Wake Forest University School of Law
Sarah Plastino
Adjunct Professor of Law
University of Denver, Sturm College of Law
Anam Rahman
Adjunct Professor of Law Georgetown University Law Center
Jaya Ramji-Nogales Professor of Law Temple Law School
Shruti Rana
Assistant Dean & Professor
Hamilton Lugar School of Global & International Studies Indiana University Bloomington
Victor Romero
Professor of Law
Penn State Law, University Park
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Rachel Rosenbloom
Professor of Law
Northeastern University School of Law
Kevin Ruser
Richard and Margaret Larson Professor of Law M.S. Hevelone Professor of Law
Director of Clinical Programs
University of Nebraska College of Law
Mario Russell
Adjunct Professor of Law
St John’s University, School of Law
Faiza Sayed
Visiting Professor of Clinical Law Brooklyn Law School
Andrew Schoenholtz
Professor from Practice Georgetown University Law Center
Erica Schommer
Clinical Professor of Law
St. Mary’s University School of Law
Kim Thuy Seelinger
Visiting Professor
Washington University School of Law
Rebecca Sharpless
Professor of Law
University of Miami School of Law
Anna Shavers
Cline Williams Professor of Citizenship Law Associate Dean for Diversity and Inclusion University of Nebraska College of Law
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law
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Jayashri Srikantiah
Associate Dean for Clinical Education Director, Immigrants’ Rights Clinic Stanford Law School
Elissa Steglich
Clinical Professor
University of Texas School of Law
Mark Steiner
Professor of Law
South Texas College of Law Houston
Maureen Sweeney
Law School Professor
University of Maryland Carey School of Law
Margaret Taylor
Professor of Law
Wake Forest University School of Law
Claire Thomas Director, Asylum Clinic New York Law School
David Thronson
Alan S. Zekelman Professor of International Human Rights Law Michigan State University College of Law
Emily Torstveit Ngara
Assistant Clinical Professor of Law Georgia State University College of Law
Enid Trucios-Haynes
Professor of Law
Brandeis School of Law, University of Louisville
Diane Uchimiya
Director of Clinical Programs Creighton University School of Law
Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law in Access to Justice UC Berkeley School of Law
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Shoba Sivaprasad Wadhia
Associate Dean for Diversity, Equity, and Inclusion
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law, University Park
Jonathan Weinberg
Professor of Law and Associate Dean for Research Wayne State University
Anna Welch
Clinical Professor
University of Maine School of Law
Michael Wishnie
William O. Douglas Clinical Professor of Law Yale Law School
Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University
Elliott Young Professor of History Lewis & Clark College
cc: Susan Rice, White House
Esther Olavarria, White House
Tyler Moran, White House
Matt Clapper, DOJ
Margy O’Herron, DOJ
Jean King, EOIR
Secretary Alejandro Mayorkas, DHS Angie Kelley, DHS
Kamal Essaheb, DHS
David Shahoulian, DHS
Tom Jawetz, DHS
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 *****************************

All the familiar problems that have plagued the DOJ under past Dem Administrations and helped create the due process and human rights disaster in today’s dysfunctional Immigration “Courts,” that aren’t “courts” at all as operated by Judge Garland, are on display here!

First, I know that I’m not the only person who made this or a similar recommendation to the Biden Transition Team. So, 100 days in, why are we still writing letters while those supposedly “in charge” dawdle over common sense “day one stuff” that would dramatically improve the delivery of justice in America?

Second, the “sign on” list here looks like a “who’s who” of the practical experts who should be running EOIR, comprising the entire BIA, and filling vacant Immigration Judge positions! That they are writing letters from the “outside” rather than running the system from “the inside” shows dramatically why Judge Garland is on a course for failure at DOJ — a failure that American democracy can’t afford!

To date, to my knowledge, Judge Garland has made only one Immigraton Judge appointment — a white, male former prosecutor with no prior immigration, human rights, or judicial experience! In other words, same old, same old ignorant devaluing of Immigration Judge positions and the power they hold over human lives and the future of our nation. When will they ever learn?

The irony or ironies — in all of history, there has been only one Attorney General to recognize the true power and potential of the Immigration Judiciary — for good or evil — and act accordingly. Unfortunately, that happened to be White Nationalist, misogynist, xenophobic, racist Jeff “Gonzo Apocalypto” Sessions! Why is he effectively “still in charge” under Judge Garland and an Administration that ran on a platform of fair and just treatment of asylum seekers and other migrants?

Letters are nice — but they are no substitute for action to solve festering problems!

Who REALLY ‘runs” our disgraceful and dysfunctional Immigration “Courts”

This guy?

Or, this guy?

How can you tell?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-04-21