In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
Here’s the abstract with a link to the article:
https://journals.sagepub.com/doi/10.1177/23315024231175379
Abstract
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
• Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. • The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. • The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. • The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. • The absence of a statute of limitations for civil immigration offenses. • Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. • The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). • The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. • A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
I don’t think that the Democratic Party can continue to use the lack of overall immigration reform, something the current GOP does not want to see and will continue to block, is an excuse for not making the current legal system work better, starting with EOIR. See, e.g., https://immigrationcourtside.com/2023/04/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8-speaking-out-matthew-at-the-border-acting-on-the-message-of-chapter-25/\
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
🇺🇸 Due Process Forever!
PWS
05-28-23