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The Immigration Court Backlog

Solving The Immigration Court Backlog

Attorney General Jeff Sessions has instituted new immigration court quotas in an effort to speed up case handling and reduce the immigration courts' huge case backlog.

The new performance ratings will require that judges clear at least 700 cases a year in order to receive a satisfactory job rating, with less than 15% of decisions being sent back by appeals courts.

These quotas, first reported by The Wall Street Journal, were laid out in a performance plan memo by Mr. Sessions earlier this month, and will go into effect October 1st. Many are worried what the effect these quotas might have on the functioning of the immigration court system.

How the Immigration Court System Works

The immigration court system is designed to uphold the right to due process of anyone who is being tried in the United States. This means that all immigration hopefuls - including the caravans of asylum-seekers crossing the US-Mexico border - must have their case heard in front of an immigration judge before they can be deported.

The courts, which are vast, complicated and frequently understaffed, are overseen by the Justice Department’s Executive Office for Immigration Review, or EOIR. Currently, there are 350 immigration judges working across the country.

History of the Backlog

These judges are working on a case backlog that’s grown to nearly 685,000 cases over the last decade.

This increased backlog has been steadily growing since 2008, with active deportation cases growing by over 100,000 cases during the 2016 - 2017 fiscal year, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

The case backlog began growing under the Obama Administration, which increased efforts to deport undocumented immigrants with criminal histories. With the Trump Administration's vendetta against all forms of immigration, the backlog has understandably grown significantly larger.

One reason for the growing backlog might be a lack of manpower. According to officials at the EOIR, there are simply not enough immigration judges to handle the number of cases in the docket. James McHenry, the director of EOIR, told lawmakers last November that "it would take about 700 judges to reverse the decade-long buildup."

Congress has tried to make amends - by approving funding for up to 449 immigration judges in the new fiscal year. The current budget includes funding to add 100 judges - a 35 percent increase over current levels - along with extra funds to speed up the hiring process.

The extra hands are sorely needed. Each case takes between 560 to 710 days - or nearly two years - for a final court decision to be reached. The complexity of the cases vary significantly, and affect the time to adjudicate.

Judges handling cases involving new arrivals near the Mexican border, for example, are able to make faster decisions than a judge in the Northeast handling cases involving immigrants with well-established routes and American Citizen dependents.

According to the LA Times, "Cases involving unaccompanied minors can be particularly complex because the law allows a variety of relief options, including requesting asylum or seeking ‘special immigrant juvenile status’ if they have been abused or abandoned by their parents."

Previous administrations have tried different strategies to reduce the immigration court backlog. Under George W. Bush, the appeals processes was streamlined following the 9/11 attacks, and even Obama created what critics called a "rocket docket," which gave preference to cases involving unaccompanied minors. However, neither strategy made a noticeable dent in the growing backlog numbers however.

Prior to imposing quotas, the Trump Administration even tried a myriad of other strategies to diminish the case numbers - from streamlining the hiring process for new judges to limiting the number of times a judge could delay a decision on a case. According to the LA Times, "Sessions even sent judges to the border, and is expanding a program for holding hearings by video teleconference."

Sessions told Congress late last year that the case backlog would be receding by this January, but TRAC's numbers show it's actually grown by nearly 50,000 cases.

How could the quotas change immigration?

As it is, judges clear an average of 678 cases a year, so pushing that up to 700 might not seem like a big change. But the clearance rate is well below that average in courts where cases are more complex, and, there, the effect of the new quotas could be severe.

Still, there are many that support the quotas. Art Arthur, a retired immigration judge from Pennsylvania, said if an immigrant is deportable, “it is de facto amnesty” to let him or her stay for months or years while awaiting the outcome of their cases “because they get to live here indefinitely.” According to his interview with the Dallas news, Arthur himself cleared nearly 1,000 cases every year during his decade-long career.

Others claim that forcing judges to meet quotas will do more to undermine due process than reduce immigration court backlogs, as judges will be forced to place their job security ahead of real justice.

Paul Schmidt, a retired immigration judge who served as chairman of the Board of Immigration Appeals for immigration courts for six years, told the Dallas News that "issues in immigration court are life and death,” referring to asylum cases, and should not be taken lightly.

Schmidt said that there are good judges who take time with cases, which is often needed in asylum pleas from immigrants from countries at war or known for persecution of certain groups.

But he also said there were “some not-very-good judges” with high productivity. Ramping up the production line, according to Schmidt, is simply a waste of time.

What should immigrants do?

One of the major time blocks in immigration cases is the lack of of attorneys to steer clients through the process. Immigrants facing immigration deportation proceedings, different than people facing criminal court proceedings, are not entitled to government-supplied lawyers. According to TRAC, about 58 percent of immigrants facing US court proceedings are represented by attorneys, although in border states like Texas, those numbers drop to about 30%.

The immigration process is complicated, and, without a lawyer, immigrants face a higher likelihood for deportation. With judges being forced to move faster through cases, the best way for immigrants to protect themseleves is to make sure they have a trusted immigration attorney on their side.

If you or a loved one has an immigration case and is looking for legal support, please contact us for help.