CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”
The other day I got a call from my good friend and UW Law classmate, retired Wisconsin State Judge Tom Lister. The conversation went something like this:
TOM: Schmidt, I’ve been reading about the backlog in your blog — 1.1 million cases! No way it’s going to be solved just by hiring more judges. But, hey, I’m out here living well in retirement, and I’d be happy to help out. And there are hundreds, perhaps thousands of other retired judges throughout the U.S who probably would be willing to pitch in too.
ME: Yeah, sounds nice Tom, but I doubt there is any money in the EOIR budget for hiring retired judges. They once claimed they would bring back some of my retired colleagues, but the program doesn’t seem to have gone anywhere.
TOM: I don’t need a salary. I’m willing to volunteer! Just pay my incidentals.
ME: Well, then there’s this thing called the Anti-Deficiency Act that prevents agencies like DOJ from accepting free services. It would take some kind of statutory waiver . . . .
By that time, I felt that I was retreating into just the type of bureaucratic “yes-buts” or “passive yeses” that I used to hate during my days as a bureaucrat right up until the present.
But, what if Congress created an independent Immigration Court free of the “bureaucratic no-nos” that plague the DOJ bureaucracy? And what if the system were run by actual sitting judges committed to using “teamwork and innovation” to solve problems, institute “best practices,” and aspire to become “the world’s best tribunals” guaranteeing fairness and Due Process for all?”
Maybe we’d have things like this:
SENIOR JUDICIAL DUE PROCESS BRIGADE
Retired judges of all types would be trained and available to assist the Immigration Courts in dealing with “surges,” retirement waves, changes in the law, and other “emergencies” on a volunteer basis.
DIVISION A: RETIRED IMMIGRATION JUDGES
They could be trained to handle all types of immigration cases on a volunteer “as needed” basis. This would be very similar to the Senior Judge Corps used by other Federal Courts.
DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH
They could be trained to handle certain types of Immigration Court adjudications that are primarily fact-findings that would require some basic knowledge of immigration law but not the degree of specialized expertise that might be expected of a permanent Immigration Judge. Like “Division A” they would be volunteers, requiring expense reimbursement only.
Obvious candidates for “Division B Judges:”
- Cancellation of Removal all types where basic eligibility is uncontested and the only issues are hardship and discretion;
- Bonds where there are no statutory eligibility issues;
- Adjustments of Status;
- “Voluntary Departure Only” cases;
- Master Calendars;
- Withdrawals and other stipulated cases;
- Status Conferences;
- In Absentia dockets.
ASYLUM OFFICER MAGISTRATE BRIGADE
Put the Asylum Officers under the Immigration Courts where they can be used for a wide range of adjudications much like U.S. Magistrate Judges. This would include, but not be limited to, asylum, withholding, and CAT cases. Another obvious candidate would be certain Non-Lawful-Permanent Resident Cancellation of Removal cases.
Since the existing USCIS program would be folded in, the expenses of this conversion would be minimal and the possibilities for improving justice, due process, and efficiency limitless!
This is by no means the full extent of what could be done to improve the delivery of justice and fairness in the U.S. Immigration Courts. But, to let the “creative juices and efficiencies flow,” it will require Congress to move the Immigration Courts out of the DOJ and create an independent court where judges are free to work as a team and with “stakeholders” to solve problems, rather than creating new ones or aggravating existing ones.
PWS
02-14-19