- posted: Feb. 01, 2019
The number of pending caseloads in the Immigration courts would throw your head in a spin- the number is just shy of whopping 829,608 cases as of Feb 1, 2019. This data is based on the information released by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which tracks data from immigration courts. This number does not include the impact of the 35-day government shutdown in December and January that led to about 400 immigration judges being furloughed. As a result of this, about 60,000 hearings were cancelled. According to the report, in 2018, between 20,000 and 25,000 new immigration cases were filed every month. The report further informs that unless there is a dramatic drop in arrests and removal actions initiated by immigration authorities during the shutdown period, there appear to be a sizable number of new filings yet to be recorded and reflected in the court's workload.
The vast majority of immigration cases have not yet been rescheduled. We have had our firm’s client case cancelled and hasn’t yet been put back on the calendar. Because of the backlog, we don’t expect those cases to be rescheduled until 2020. The Department of Justice, which oversees the immigration court system, however; disputes the estimate of cancellations during the shutdown. The Justice Department’s Executive Office of Immigration Review (EOIR), which administers immigration courts, released its plan that includes a “comprehensive strategy for significantly reducing the caseload by 2020”. Based on the current backlog that is increasing as each month passes by, it seems to be a mammoth task ahead of Immigration Judges that shows less likelihood of clearing the backlog. EOIR’s Memo on Its Strategic Caseload Reduction Plan that the U.S. Department of Justice (DOJ) published on December 6, 2017, confirms that “The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”
The pending caseload has risen dramatically in recent years from 356,246 in 2013 to 521,416 in the year 2016 to 821,726 as on December 31, 2018. It will require a very sophisticated and well-designed strategy and result oriented plan to clear the huge load of pending cases.
Prior administrations under Presidents George W Bush and Barack Obama have done little to help reduce the pile. Under George W. Bush, the appeals process was streamlined following the 9/11 attacks. Under Obama administration, a plan called "rocket docket" was created that gave preference to cases involving unaccompanied minors. Neither of these strategies made a noticeable dent in the growing backlog numbers.
The current administration’s plan directive doesn’t seem to have a successful plan either. The Attorney General and EOIR policies have limited immigration judges’ independence and ability to effectively control their own dockets and address the backlog. These changes include limiting a judges’ ability to continue cases and use of administrative closure (an important tool that allows a judge to temporarily take a case off the court docket). As a result of these policies, the court removed 330,211 previously completed cases and put them back on the backlog. These cases were previously administratively closed and had been considered part of the court's completed caseload. Effectively, the total number of backlog has now grown to a whopping 1,098,468 cases. As per TRAC, assuming the court aims to schedule hearings eventually on all the newly defined pending cases, the backlog of over a million cases would take 5.1 years to work through at the current pace. This figure again assumes that the court sets aside newly arriving cases and concentrates exclusively on the backlog. This backlog will continue to rise because it has taken years to build and new cases will continue to outpace the number of cases completed.
EOIR’s administration plan requires the Immigration Judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change has compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. This has resulted only in adding to backlog of cases onto the court dockets. To add to the agony of immigrants who are affected by this mountain of caseload, Attorney General Jeff Sessions instituted new immigration court quotas that tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year. It appeared to take away independence authority of immigration judges and sent a message that immigration judges are not independent; they’re part of the Justice Department and that the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are just as government attorneys. The National Association of Immigration Judges have expressed their concern to this affect and have called for Congress to create an immigration court separate from the Justice Department.
It is true that unless immigration courts are entrusted with the autonomous and independent authority without direct influence from Department of Justice to address the issue, the pending backlog of cases will continue to grow without any sight of reduction. The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. By no means, the administration’s plan seems to include effective model to address this serious issue to tackle the backlog; it rather relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace and has affected the morals of immigration judges. Immigration Judges must be vested with authority to procure judicial resources that may deem fit will assist them in their efforts to clear the pending cases. Forcing judges to meet quotas will do more to undermine due process than reduce immigration court backlogs.
Immigration Court system needs Congress’s intervention for a detailed review to provide judicial autonomy and pull it out of the purview of Department of Justice and provide autonomy to ensure that the immigration court system works independent in its workings, functions and procedures. Immigration Court must not be influenced by other branches of government, must follow it's own rules and codes that are separate from outside influences and any bias. I hope in this land of liberty, fairness and justice to all; our Immigration Courts will have that judicial autonomy.
Vijay Bhagwati, Esq.
Founder and Managing Partner
