Senate Holds Hearing on Immigration Courts, I

By Jon Feere, May 18, 2011

This morning the Senate Judiciary Committee held a hearing titled, "Improving Efficiency and Ensuring Justice in the Immigration Court System." (See my colleague David North's report on the hearing here.) The focus of the hearing was the chronic backlogging in the immigration court system, and most of the discussion was about how the court system could be streamlined in order to meet growing demands. Very little discussion was given to the idea of reducing immigration, both legal and illegal, as a means to alleviate some of the problem. The only panelist to look at the issue from this perspective was former Assistant Secretary for Immigration and Customs Enforcement, Julie Myers Wood.

The hearing page is here, including a video of the proceedings.

Juan P. Osuna, Director of the Executive Office for Immigration Review, testified that the immigration court system is currently managing over 270,000 pending cases, the largest number the court system has ever encountered. The director explained that the caseload is tied directly to annual increases in cases filed in the immigration courts by DHS. In fiscal year 2007, the immigration courts received 279,430 proceedings. Three years later in 2010, the immigration courts received 325,326 proceedings. EOIR is projecting that the case receipts for 2011 will top 400,000. All of this results in increased backlogging. The solution from the EOIR's perspective focuses largely on hiring and training more judges and clerks.

Karen T. Grisez, Chair of the American Bar Association's (ABA) Commission on Immigration, testified that expansion of immigration enforcement activity through programs like Secure Communities has not been matched by a commensurate increase in resources for the adjudication of immigration cases. She cited a Transactional Records Access Clearinghouse report which found that the average wait time for immigration cases has risen to 467 days. Like the EOIR, the ABA supports the hiring of more immigration judges and clerks along with a number of administrative changes to the adjudication process.

Julie Myers Wood, former Assistant Secretary for ICE, testified that in fiscal year 2010 immigration judges completed an average of 1,300 proceedings per judge, many more than other administrative law judges in other fields and with far fewer law clerk resources to assist them. While Mrs. Wood appeared open to the idea of additional hires and also proposed additional means for internal efficiencies, she explained that internal efficiencies are "insufficient to fully address the existing backlog and expected influx of cases and ensure that the court system operates with some efficiency." She explained that one goal should be "to reduce the number of cases that must come before immigration courts for full hearings." One way to achieve this, she explained, is through an expansion of expedited removal, something discussed in an earlier blog. The goal should be to reduce not only inefficiency in the immigration courts, but also to reduce demand. As the former ICE official explained:

By statute, expedited removal may be utilized for individuals that have been in the country for up to two years. However, the executive branch has not utilized the full statutory authority provided for expedited removal, but instead applied certain arbitrary limitations, including the most recent requirement that the alien be apprehended no more than 100 miles from the border and has spent less than 14 days in the country. There is no reason that the government could not take steps to administratively expand the current use of expedited removal, by, for example, focusing on certain known smuggling routes beyond 100 miles or slightly extending the current time period for eligibility (30 days vs. 14 days, for example). Another alternative would be to apply extended time and range limits for the use of expedited removal for immigrants who are convicted of a crime by state or local law enforcement.

As written into law, expedited removal applies to illegal aliens apprehended anywhere in the United States, provided the alien has not been continuously physically present in the country for longer than two years. Both the Clinton and G.W. Bush administrations decided to limit the program; Clinton allowed for expedited removal only at a few ports of entry while Bush decided not to use the removal process for Mexican or Canadian aliens. Implementing the program to the full extent of the law could greatly reduce the burden on immigration courts.

Mrs. Wood also supported a greater use of stipulated removals, voluntary departures, and Rapid REPAT, each of which would return aliens home while reducing immigration court caseloads.

Perhaps the best way to alleviate the problems associated with the nation's overburdened immigration court system is to reduce the amount of legal and illegal immigration coming into the country. This would require support for policies like E-Verify, the end of sanctuary cities, cutting off unnecessary benefits to illegal aliens, and securing the borders, for example. It would also mean reducing legal immigration to more rational levels. The problem is that many of the organizations which claim to support a more efficient immigration court system work steadfastly against anything that might reduce legal and illegal immigration. For example, the ABA filed a brief against Arizona's anti-illegal immigration bill S.B. 1070 last year, angering many of its members. The ABA opposes expedited removal. The ABA supports mass amnesty for illegal aliens, something that will certainly result in backlogging and litigation.

Until the United States can effectively regulate immigration, streamlining our immigration court system is going to prove difficult.