GAO Exposes Massive Increase in Immigration Court Backlog

On Thursday, the Government Accountability Office (GAO) issued its long-awaited report on the management of the immigration court system by the Executive Office for Immigration Review (EOIR). The results, as they pertained to the immigration court backlog, revealed significant declines in the ability of the immigration courts to complete cases over the past 10 years.

For those not familiar with its work, GAO "is an independent, nonpartisan agency that works for Congress. Often called the 'congressional watchdog,' GAO investigates how the federal government spends taxpayer dollars." The impetus for this report was a request from Congress that GAO "review EOIR's management and oversight of the immigration court system, as well as options for improving EOIR's performance, including through restructuring."

EOIR, an office within the Department of Justice (DOJ), is headed by a director "who is responsible for the supervision of the deputy director, the chairman of the Board of Immigration Appeals [BIA], the chief immigration judge, the chief administrative hearing officer, and all agency personnel in the execution of their duties in accordance with 8 CFR Part 3." The more than 300 immigration judges (IJs) in the nation's 58 immigration courts fall under the control of the Office of the Chief Immigration Judge (OCIJ) and appeals from those courts are taken to the BIA.

GAO determined that EOIR's "case backlog — cases pending from previous years that remain open at the start of a new fiscal year — more than doubled from fiscal years [FY] 2006 through 2015 ... primarily due to declining cases completed per year." Specifically, GAO found that backlog rose from "about" 212,000 cases pending at the start of FY 2006, when the median pending time for those cases was 198 days, to 437,000 pending cases at the start of FY 2015, when the median pending time was 404 days. Because of this backlog, GAO noted:

[S]ome immigration courts were scheduling hearings several years in the future. ... As of February 2, 2017, half of courts had master calendar hearings scheduled as far as January 2018 or beyond and had individual merits hearings, during which immigration judges generally render case decisions, scheduled as far as June 2018 or beyond. However, the range of hearing dates varied; as of February 2, 2017, one court had master calendar hearings scheduled no further than March 2017 while another court had master calendar hearings scheduled in May 2021 — more than 4 years in the future. Similarly, courts varied in the extent to which individual merits hearings were scheduled into the future. As of February 2, 2017, one court had individual hearings scheduled out no further than March 2017 while another court had scheduled individual hearings 5 years into the future — February 2022.

Interestingly, however, the increase in the case backlog did not directly result from an increase in new case receipts. GAO found that:

[T]otal case receipts remained about the same in fiscal years 2006 and 2015 but fluctuated over the 10-year period, with new case receipts generally decreasing and other case receipts generally increasing. Specifically, there were about 305,000 total case receipts in fiscal year 2006 and 310,000 in fiscal year 2015. The number of new cases filed in immigration courts decreased over the 10-year period but fluctuated within this period. New case receipts increased about four percent between fiscal year 2006 and fiscal year 2009, from about 247,000 cases to about 256,000 cases, but declined each year after fiscal year 2009, with the exception of an increase in fiscal year 2014. Overall, new case receipts declined by 20 percent after fiscal year 2009 to about 202,000 during fiscal year 2015.

While the number of new cases received fell, the number of "other" case receipts by the court, including motions to reopen, reconsider, or recalendar, and remands by the BIA, increased by 86 percent over this 10-year period, from 58,000 cases in FY 2006 to 108,000 in FY 2015.

As new case receipts fell, and other case receipts rose, the immigration courts were completing fewer cases annually. Incredibly, GAO found, "the number of immigration court cases completed annually declined by 31 percent from fiscal year 2006 to fiscal year 2015 — from about 287,000 cases completed in fiscal year 2006 to about 199,000 completed in 2015," even as the number of IJs increased by 17 percent over that 10-year period.

Even those statistics do not tell the whole story, according to the GAO: During this 10-year period, the number of cases that were decided on the merits of the case declined from 95 percent of all cases completed in FY 2006 to 77 percent completed in FY 2015, while the number of cases administratively closed increased.

A case is decided on the merits when the IJ resolves all of the outstanding matters in the case — that is, whether the alien is removable (or, in some cases is an alien) and whether the alien should be granted any benefit or relief from removal that the alien seeks. "Administrative closure", on the other hand, is a process by which an IJ removes a case from the court calendar, either on the IJ's own initiative or on motion by one of the parties. As GAO noted:

An [IJ] may grant administrative closure for various reasons, including in cases for which DHS exercises prosecutorial discretion and requests a case to be administratively closed because the respondent does not meet enforcement priorities. ... A judge may also administratively close a case where the respondent plans to apply for certain immigration benefits under the jurisdiction of USCIS, such as an unaccompanied alien child's initial asylum claim, or other forms of relief due to specific circumstances such as being the victim of a severe form of trafficking in persons or certain qualifying crimes. An immigration judge can return an administratively closed case to the calendar at his or her discretion or at the request of the respondent or DHS attorney. The primary consideration for an immigration judge in evaluating whether to administratively close or recalendar proceedings is whether the party in opposition has provided a persuasive reason for the case to proceed and be resolved on the merits; and in considering administrative closure, the judge cannot review whether an alien falls within DHS's enforcement priorities.

The major driver in the backlog appears to be a significant increase in the amount of time that it is taking IJs to complete cases. In particular, GAO found that "[i]nitial case completion time", that is, "the time period between the date EOIR receives the [removal case charging document, the Notice to Appear (NTA) from the Department of Homeland Security] and the date an [IJ] issued an initial ruling on the case" grew "more than fivefold," between FY 2006 and FY 2015, with the "median initial completion time for cases" increasing "from 43 days in FY 2006 to 286 days in FY 2015."

One of the main reasons why IJs are taking more time to complete cases today than they did 10 years ago is an increase in the number of continuances that IJs have granted over that period. As the GAO noted (logically): "cases that experience more continuances take longer to complete." After reviewing 3.7 million continuance records from FY 2006 through FY 2015, GAO concluded that continuances increased by 23 percent from FY 2006 to FY 2015 with "the percentage of completed cases which had multiple continuances" also increasing during that period. Most critically, the cases in which the largest number of continuances that GAO identified were issued, those with "four or more continuances," increased from 9 percent of cases completed in FY 2006 to 20 percent of cases completed in FY 2015. Those continuances made an impact, as GAO found: "[C]ases that were completed in [FY] 2015 and had no continuances took an average of 175 days to complete. In contrast, cases with four or more continuances took an average of 929 days to complete" that year.

In my next post, I will examine some of the reasons for the increase in the length of time that it is taking IJs to complete cases, and why the number of continuances granted by IJs have grown in the past 10 years.