Tackling the Backlogs in Immigration Court

On June 1, 2017, the Government Accountability Office (GAO) issued a report detailing a significant increase in the immigration courts' case backlog between Fiscal Year (FY) 2006 and FY 2015. In a June 6, 2017 post, I summarized that report, and in a June 9, 2017 post, I offered some explanations for the increase in the backlog over that 10-year period. In this post, I will offer some solutions to ease that backlog.

To review: GAO found that the immigration courts' "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." In particular, GAO calculated that the courts' backlog increased from approximately 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. That backlog increased, GAO determined, even though the courts' new case receipts declined from 247,000 cases in FY 2006 to about 202,000 during FY 2015.

GAO stated that Department of Homeland Security (DHS) attorneys and others complained that the "frequent use of continuances [by immigration judges (IJs)] resulted in delays and increased case lengths that contributed to the backlog." This complaint was bolstered by GAO's finding that over that 10-year period, immigration courts were concluding fewer cases while granting more continuances.

Specifically, GAO found that the number of cases the immigration courts completed on an annual basis "declined by 31 percent between [FY] 2006 and [FY] 2015 — from 287,000 cases completed in [FY] 2006 to about 199,000 completed in [FY] 2015," even though the number of IJs went up 17 percent. It also determined that "continuances increased by 23 percent from [FY] 2006 to [FY] 2015," and in particular that "[IJ]-related continuances increased by 54 percent from about 47,000 continuances issued in [FY] 2006 to approximately 72,000 continuances issued in [FY] 2015."

In my June 9 post, I listed some of the reasons for the increase in the backlog in that 10-year period:

  • Resources. There are too few judges and support staff to do the job adequately.

  • Increases in benefits and leave. IJs are government employees, and as they get more seniority, they receive more leave, increasing from four hours of personal leave per pay period (every two weeks) to eight hours per pay period.

  • The "surge". More families and unaccompanied alien children (UACs) began to enter the United States in FY 2014. EOIR responded on July 9, 2014 by "prioritizing" certain "cases involving migrants who have recently crossed the southwest border and whom DHS has placed into removal proceedings" in order to ensure "that these cases are processed both quickly and fairly to enable prompt removal in appropriate cases, while ensuring the protection of asylum seekers and others." This both increased the dockets and led to IJs being reassigned from scheduled hearings. The surge cases are also more complicated than cases involving single adult males, which required more courtroom time (and continuances) per case.

  • Federal court case law. Recent federal court decisions have complicated IJs removal decisions in recent years, slowing proceedings and increasing continuances. In addition, recent decisions from the Ninth Circuit Court of Appeals have increased the number of aliens who are eligible for bond, requiring the scheduling of bond hearings and rescheduling cases when aliens are released from custody.

  • Obama administration policies. Policies instituted in the last administration, including "Deferred Action for Childhood Arrivals" (DACA) and an increase in "prosecutorial discretion", led to numerous continuances, as aliens sought counsel and applied for relief or discretionary closures, release, or termination. In addition, DHS's so-called "prosecutorial discretion" policies made it clear that most cases involving non-criminal aliens were not a priority for the Obama administration; it would have been only logical for IJs to have placed a lower priority on completing those cases, resulting in delays.

  • IJ burnout. A 2009 study found "many immigration judges adjudicating cases of asylum seekers are suffering from significant symptoms of secondary traumatic stress and job burnout, which, according to the researchers, may shape their judicial decision-making processes." IJs' working conditions only have only gotten worse as the backlogs have grown. A crushing docket adds to the stress of being a judge, and as that stress rises, performance logically suffers. This, in turn, results in more reversals and remands, adding even more cases to the backlog.

Although these issues may seem intractable, in reality solutions to most of these problems can be found, assuming that the president has the will to enforce the immigration laws and Congress has the will to provide adequate resources to do the job.

There is good news on the first front. In remarks to U.S. Customs and Border Protection (CBP) Officers in Nogales, Ariz., on April 11, 2017, Attorney General Jeff Sessions "revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year," and "highlighted the Department [of Justice's] plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts." Is this enough? Probably not, but it is a start.

Those judges will also (in most instances) come in with less seniority than the IJs they join. This means that they will receive fewer hours of leave per pay period, and will therefore be available to hear more cases on an annual basis.

A change in policy and rhetoric from the executive branch on immigration enforcement at the border and the interior will, however, likely be the biggest driver in lowering the number of incoming cases and shrinking the backlog.

Throughout the campaign, then-candidate Trump made it clear that he intended to enforce the immigration laws if elected. Backing up this rhetoric as it pertained to those entering illegally, on January 25, 2017, President Trump issued an Executive Order (E.O. 13,767) captioned "Border Security and Immigration Enforcement Improvements". While each of the sections of that order relate to immigration enforcement, four in particular will affect the number of aliens who are placed into removal proceedings after having entered the United States illegally.

First, Section 2 of that order makes it clear that it is the policy of the executive branch to:

(a) secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism;

(b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations;

(c) expedite determinations of apprehended individuals' claims of eligibility to remain in the United States;

(d) remove promptly those individuals whose legal claims to remain in the United States have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; [and]

(e) cooperate fully with States and local law enforcement in enacting Federal-State partnerships to enforce Federal immigration priorities, as well as State monitoring and detention programs that are consistent with Federal law and do not undermine Federal immigration priorities.

Section 5 of that order, captioned "Detention Facilities", states:

(a) The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.

(b) The Secretary shall take all appropriate action and allocate all legally available resources to immediately assign asylum officers to immigration detention facilities for the purpose of accepting asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1225(b)(1)) and applicable regulations and reasonable fear determinations pursuant to applicable regulations.

(c) The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the Secretary, or operated or controlled pursuant to contract by the Secretary, for the purpose of conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code.

Section 6 of that order, captioned "Detention for Illegal Entry", specifies that the Secretary of Homeland Security:

[S]hall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as "catch and release," whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.

Section 13 of that order, captioned "Priority Enforcement", provides:

The Attorney General shall take all appropriate steps to establish prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border.

The theory behind these provisions appears to be that, if a foreign national considering illegal entry into the United States knows that he or she will be arrested and detained (and possibly prosecuted) pending a determination of removability and relief, that foreign national will be less likely to try to enter illegally. If this is true, the order ostensibly has had the intended effect.

The number of aliens apprehended along the Southwest border has dropped precipitously since the election and since the issuance of this order. Specifically, according to CBP, the number of apprehensions along the border and inadmissible persons at ports of entry declined from 66,712 in October 2016 to 63,364 in November 2016, 58,426 in December 2016, 42,473 in January 2017, 23,563 in February 2017, 16,600 in March 2017, and to 15,780 in April 2017, before increasing slightly in May 2017 to 19,967).

Of that number, CBP states, Southwest Border apprehensions in FY 2017 dropped 76 percent from a high of 47,211 aliens in November 2016 to 11,126 aliens in April 2017, before ticking up slightly in May (to 14,535 aliens).

These numbers directly affect the backlog in the immigration courts, because the fewer aliens apprehended along the border, the fewer new removal cases will be filed in the immigration courts. In addition, it can be assumed that some significant proportion of those aliens would have claimed "credible fear". As I explained in an April 2017 Backgrounder on "Fraud in the 'Credible Fear' Process":

A credible fear request is a precondition to filing a defensive asylum application for an alien in expedited removal proceedings under section 235(b) of the Immigration and Nationality Act (INA). That section of the INA allows immigration officers — rather than judges — to order the deportation of aliens who have failed to establish that they have been in the United States continuously for two years and who have been charged with inadmissibility under section 212(a)(6)(c) (fraud or misrepresentation) and/or section 212(a)(7) (no documentation) of the INA. DHS has expanded its use of expedited removal over the years.

The most common instance in which DHS uses expedited removal is when it apprehends (1) an alien seeking admission without a proper entry document at a port of entry; or (2) an alien who is attempting to enter or who has entered illegally along the border. If the alien asserts a fear of persecution, the arresting officer will refer the alien to an asylum officer for a "credible fear interview". If the asylum officer determines that the alien has a credible fear, the alien is placed in removal proceedings before an immigration judge, where the alien can file his or her application for asylum.

Under section 235(b)(1)(B)(v) of the INA, "the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208."

Once a credible fear case is referred to the immigration court, at least four separate hearings are held: a master calendar hearing at which pleadings are taken and the alien requests an opportunity to apply for asylum, withholding of removal, and protection under Article III of the Convention Against Torture; a request for a bond; a hearing at which the asylum application is filed; and at least one hearing on the merits of that application. While the first and second (or second and third) hearings are often held on the same docket, each requires at least a setting of the matter and takes up time on the docket. Plus, there may be additional continuances, where an alien seeks counsel or is released (requiring the case to be reset to a non-detained docket), or where additional time is sought to complete the application or to obtain evidence or witnesses. The fewer the "credible fear" cases, the fewer the hearings, and the lower the backlog, or at least the lower the increase in the backlog.

More importantly for purposes of the backlog, however, is the fact that the number of UACs and family unit members has decreased significantly since the election and the inauguration. The number of UACs apprehended at the Southwest border dropped 86 percent between November 2016 (7,348 aliens) and April 2017 (997 aliens), and the number of family unit members apprehended declined 92 percent during the same period, from 15,588 aliens in November 2016 to 1,188 aliens in April 2017. The number of UACs and family unit members attempting to enter along the Southwest border should continue to be monitored, however, because UAC apprehensions increased 49 percent between April and May 2017 (to 1,493 aliens), and family unit members increased 41 percent during that time period (to 1,577 aliens).

All told, however, according to CBP, there was "a 64 percent decrease in migration when comparing May 2016 to May 2017."

These decreases will, by themselves, significantly relieve additional pressure on the immigration courts' dockets, as explained above. And, as noted, cases involving UACs and families are generally more complex (and time-consuming), and so the decline in the number of those cases will provide even more relief to the IJs.

That said, however, the reassignment of IJs under section 5(c) of the order has (or is likely to have) caused delays, at least in the short term, in the courts from which they were reassigned. In the long run, however, by deterring future illegal entries of aliens who will, therefore, never appear on court dockets, the result should be a net decrease in the immigration courts' backlog.

A change in tone and policy as it relates to interior enforcement will likely have an effect on the backlog as well.

On the same day that the president issued the executive order above, January 25, 2017, he issued Executive Order 13,768, "Enhancing Public Safety in the Interior of the United States". Section 2 of that order, captioned "Policy", makes clear that the policy of the executive branch is to:

(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;

(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;

(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;

(d) Ensure that aliens ordered removed from the United States are promptly removed; and

(e) Support victims, and the families of victims, of crimes committed by removable aliens.

That policy was echoed in statements made by Acting Immigration and Customs Enforcement (ICE) Director Thomas Homan on Capitol Hill. In his June 13, 2017, written testimony before the House Committee on Appropriations, Subcommittee on Homeland Security, Homan stated:

To ensure the national security and public safety of the United States, and the faithful execution of the immigration laws, our officers may take enforcement action against any removable alien encountered in the course of their duties who is present in the U.S. in violation of immigration law.

Press reports state that in his oral testimony, Homan similarly told the Subcommittee: "If you're in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder. You need to be worried."

Homan contrasted ICE's current efforts in enforcing the immigration laws with those of the prior administration:

Under prior enforcement priorities, approximately 345,000, or 65 percent, of the fugitive alien population were not subject to arrest or removal. President Trump's EOs have changed that. As a result, ICE arrests are up 38 percent since the same time period last year, charging documents issued are up 47 percent, and detainers issued are up 75 percent. Thus far in this fiscal year, through May 15, 2017, ERO has removed 144,353 aliens from the United States and repatriated them to 176 countries around the world; these are aliens who posed a danger to our national security, public safety, or the integrity of the immigration system. Of those removed, 54 percent (78,301) had criminal convictions. ERO has also issued 78,176 detainers and 63,691 charging documents; maintained an average daily population of 39,610 in detention; and monitored an average of 70,044 participants daily under the Intensive Supervision Appearance Program (ISAP) III contract or Alternatives to Detention (ATD) program.

In the short run, the additional number of aliens arrested and detained will likely increase the dockets of the immigration courts. Again, however, by making it clear that all aliens who are removable are subject to arrest and removal, Director Homan's statements (and ICE's actions) will deter individuals from seeking to enter illegally, which will reduce the burdens on the immigration courts' dockets in the long run.

Increased detention will also make it less likely that aliens with non-meritorious cases will remain in the court system. Logic and experience indicate that aliens enter the United States illegally to remain at large in the United States; assume for purposes of argument that they enter to work to provide for themselves and their families. The longer that the alien is able to remain at large and work, therefore, the better. If the alien is detained and cannot work, however, there is no longer an incentive to remain; instead, accepting an order of deportation or a grant of the privilege of voluntary departure is therefore more advantageous to the alien than continued detention.

These policies and their implementation also will encourage aliens to leave the United States without ever coming to the attention of ICE. It is axiomatic that no one wants to be detained, and most aliens at large in the United States do not want to go through the process of deportation, either. As immigration enforcement becomes more of a certainty, therefore, aliens will be more likely to leave on their own. This is the "self-deportation" concept that Mitt Romney was excoriated for promoting in the 2012 election, but that has actually been demonstrated in at least one discrete context: Pakistanis facing registration under NSEERS.

NSEERS, or the "National Security Entry-Exit System", was a tool used by the former Immigration and Naturalization Service (INS) as part of its role in the War on Terror following the attacks of September 11, 2001. It was announced by then-Attorney General John Ashcroft in November 2002, and consisted of "registration through various ports-of-entry and registration through the Special Registration program". As the Migration Policy Institute noted in April 2003:

Port-of-entry registration began as a pilot program in September 2002 and has been implemented at all ports of entry (e.g., border crossings, sea ports, and airports) since October 2002. Port-of-entry registration applies to all foreign visitors entering the U.S. since October 2002 who are identified as presenting an elevated national security concern or who are from Iran, Iraq, Libya, Sudan and Syria. The criteria for identifying these individuals is based on intelligence information provided to immigration officers at ports of entry or to visa-issuing officials abroad. Upon entry to the U.S., foreign visitors are fingerprinted, photographed, and asked detailed background information. Some 49,712 foreign visitors had registered through port-of-entry registration as of March 25, 2003. In addition to the initial registration, foreign visitors must also appear at a U.S. immigration office if they plan on staying in the country for more than 30 days, and all are required to complete a departure check only at a designated departure port (of which there are approximately 100 nationwide) on the same day that they intend to leave the country.

* * * *

The Special Registration program, which was announced in November 2002 and officially launched in December 2002, requires all male foreign visitors, already in the U.S., aged 16 and older from specified countries to register at designated immigration offices within a given time period. This program, unlike the port-of-entry program that requires registration based on an elevated national security concern, depends on nationality-based criteria. To date, nationals from 25 countries have been identified to report to designated U.S. immigration offices to register. Except for North Korea, nearly all of the countries designated in Special Registration are predominantly Arab and Muslim. As of March 25, 2003, some 60,822 foreign visitors had registered through Special Registration.

Of the 82,000 aliens who signed up for "Special Registration", 13,000 were found to be removable as of June 2003, and were placed into deportation proceedings. According to the Pakistani embassy at that time, as a result of this program and other enforcement in the wake of the attacks, 15,000 Pakistanis in the United States illegally were "believed to have left for Canada, Europe, and Pakistan."

The lesson is that if the immigration laws are enforced, and if aliens believe that there is a possibility that they could face removal, they will act in a rational manner and leave without ever having to face removal. Although it is impossible to quantify the effect of those departures on the immigration court system, that effect would be real, and would spare the immigration courts the resources that they would have expended on removal proceedings for those aliens.

Similarly, the rescission of the Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") by the secretary of Homeland Security on June 15, 2017, ended a policy that needlessly extended removal proceedings, burdening the immigration courts. As U.S. Citizenship and Immigration Services has explained it:

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include: ... Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new [DAPA] program, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.

Many aliens who were in removal proceedings at the time that DAPA was announced sought, and were granted, continuances to assess their eligibility and apply for that benefit, even though federal district court Judge Andrew Hanen blocked that program from going into effect in February 2015. The ending of the program should clear the way for the completion of those cases.

The next step is for Attorney General Sessions to issue a decision on certification setting standards for the issuance of continuances in immigration court. As I explained in my June 9, 2017, post:

If an IJ grants a continuance ... there is little downside for the court. Attorneys for the government (who work for [ICE]) are limited by policy in the number of appeals that they are allowed to take. Moreover, an appeal from a continuance would be "interlocutory" in any case, that is a motion "intervening between the commencement and the end of a suit" relating to a decision "which decides some point or matter, but is not a final decision of the whole controversy." As the [Board of Immigration Appeals (BIA)] has often held, however: "To avoid piecemeal review of the myriad questions that may arise in the course of proceedings ... [it does] not ordinarily entertain interlocutory appeals." For these reasons, and to conserve resources, ICE attorneys rarely appeal continuance grants, although they generally disagree with them: As GAO noted, government attorneys to whom it spoke "told us that granting multiple continuances in cases resulted in inefficiencies and wasted resources such as [those] attorneys having to continually prepare for hearings that continued multiple times."

The attorney general has held that he:

[H]as authority to conduct de novo review of BIA decisions. . . . . "The BIA is entirely a creation of the Attorney General," and exercises only such authority as is delegated to it by the Attorney General. See 8 C.F.R. § 1003.1(d)(l) (2005). The Attorney General has retained full decision-making authority under the immigration statutes, including "full authority to receive additional evidence and to make de novo factual determinations."

He should use this authority to set limits on the ability of IJs to grant continuances, by specifying the parameters of their regulatory authority to do so "for good cause shown". Ironically, most IJs would prefer such guidance to a system in which they have scant ability to control their dockets without running the risk of a reviewing court finding that they have denied "due process" by denying continuances to aliens who have already been granted numerous continuances.

Finally, the Justice Department must fight vigorously for decisions that provide uniformity of law and "bright-line" rules for IJs to apply in real-world cases. Most people I talk to about my work as an IJ are surprised when I tell them that I handled more than 15,000 cases in eight years on the bench. IJs must be able to decide cases quickly, or run the risk that their dockets will be beyond their control; otherwise, justice suffers, and the job becomes overwhelming. Uniform, clear standards of law are essential to this task.

In Hawaii v. Trump, its recent decision on the Executive Order suspending entry of nationals from six countries in the Middle East and Africa, the Court of Appeals for the Ninth Circuit stated that a nationwide injunction of portions of that order was necessary "because 'immigration laws of the United States should be enforced vigorously and uniformly.'" This is ironic coming from a court that has set rules for IJs to apply that vary significantly from those in the other circuits. The Supreme Court's docket, however, is finite, so cases must be won or lost in the circuit courts. It is the Justice Department's job to do so.

In summary, the backlogs in the immigration courts are too large, but they are, to some degree, explained by the poor policies set by the executive branch in the recent past. There is much that needs to be done to remedy the problem, but the administration has taken some crucial first steps. It must follow through on those steps and its promises on immigration enforcement to reduce those backlogs, and Congress must also do its part by providing the needed funding to fully staff the immigration courts.