In my last post, I detailed the results of a June 1, 2017, report from the Government Accountability Office (GAO) that exposed a massive increase in the immigration courts' case backlog between Fiscal Year (FY) 2006 and 2015. Understanding the reasons for these backlogs is critical to addressing them, and to putting the immigration courts in a position to handle their workflow.
A recap: 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." Specifically, GAO determined that the 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. That backlog increased, GAO concluded, even though the courts' new case receipts declined from 247,000 cases in FY 2006 to about 202,000 during FY 2015.
During this period, according to the GAO, immigration courts were concluding fewer cases annually, while granting more continuances. According to that report, the number of cases the immigration courts completed on an annual basis declined by about 31 percent between FY 2006 and FY 2015, from 287,000 cases in FY 2006 to about 199,000 completed in FY 2015, even as the number of immigration judges (IJs) increased by 17 percent during the same period.
With respect to continuances, GAO's analysis of continuance data from the Executive Office for Immigration Review (EOIR, the office within the Department of Justice (DOJ) in which the immigration courts are located) revealed that "the use of all types of continuances increased by 23 percent from [FY] 2006 to [FY] 2015." Specifically, according to GAO's analysis: "[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," and the percentage of completed cases with multiple continuances increased as well.
Why was there such a stark increase in the backlog of cases, and decrease in the percentage of cases completed? A variety of factors, some of them susceptible to analysis, others less so, contributed to what has become a vicious circle of backlog, delay, and continuance.
The first is resources. There are, simply put, too few judges (and complementary staff) to adequately do the job. With the swearing-in of seven new IJs last month, there are approximately 323 IJs. That number, however, includes a Chief IJ and 15 other Assistant Chief IJs, each of whom hear few, if any cases. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, through April 2017, there were 585,930 pending cases in the nation's immigration courts. This means that there are approximately 1,909 pending cases per IJ. GAO determined that the average IJ completed 807 cases in FY 2015. Therefore, even if no new cases were filed, it would take the immigration courts more than two years to complete their pending cases.
IJs are not the only resource in short supply. In June 2009, TRAC reported that there were just under four IJs for each judicial law clerk (JLC). As TRAC noted, JLCs "perform many functions that can help Immigration Judges handle their caseload. ... [and] are hired each year for temporary one-to-two year positions from recent law school graduates through the Attorney General's Honors Program." The fewer hours of a JLC's time that an IJ can draw upon, the more time an IJ must spend doing research on unique issues and drafting opinions. GAO also found that a lack of "other support staff" (including clerical workers and legal technicians) was a "contributing factor" in the backlog.
Second, the number of hours that those IJs actually spend hearing cases is, on average, shrinking as the judges gain seniority. According to GAO, 39 percent of all IJs are eligible for retirement, which means that many are senior government employees, at the high end of the pay and leave scale. Senior government employees, those who have 15 or more years of federal government service, are entitled to eight hours of leave each pay period, about 208 hours or 23 (nine-hour) days per year. There are also 10 federal holidays per year when court is not in session. Finally, many if not most IJs are on a "flex schedule", or "alternative work schedule" (AWS), meaning that they work eight nine-hour days and one eight-hour day per pay period, and get one extra day off, for an additional 26 "working" days off per year. Assuming that there are 260 working days in a year (five days in a work week times 52 weeks in the year), any potential IJ entitled to the full rate of leave receiving each federal holiday with AWS may only be working 201 of them (260-23-10-26), or just more than 40 work weeks per year. In addition, IJs receive one-half day every two weeks for case preparation (too little time for this purpose), another 13 "working" days per year not spent in court. As a result, as IJs work their way up the federal employment ladder, fewer and fewer actual hours are spent in court. This likely explains in part why, as GAO found, continuances for "unplanned immigration judge leave— sick or annual leave" were up by 95 percent between FY 2006 and FY 2015.
Third, the "surge" in families across the southern border has also contributed to the backlogs and delays in completion of cases in the immigration courts.
The number of unaccompanied alien children apprehended along the border increased by 76 percent (to 68,541) between FY 2013 and FY 2014, while the number of "family units" increased by 360 percent (to 68,445) during the same period, according to U.S. Customs and Border Protection (CBP). 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." Those "new priority" cases consisted of "unaccompanied children who [had] recently crossed the southwest border; families who [had] recently crossed the border and [were] held in detention; families who [had] recently crossed the border but [were] on 'alternatives to detention;' and other detained cases." Specifically, "[t]o allocate resources with these priorities, EOIR ... reassign[ed] immigration judges in immigration courts around the country from their current dockets to hear the cases of individuals falling in these four groups," and "rescheduled [c]ases not falling into one of these groups ... to accommodate higher priority cases."
This is likely a major contributing factor for the 112 percent increase between FY 2006 (3,296 cases) and FY 2015 (6,983 cases) in continuances for "[u]nplanned immigration judge leave — detail or other assignment" identified by GAO.
In addition, as "experts and shareholders" told GAO:
[T]he nature of cases resulting from the surge exacerbated the effects of the backlog. Specifically, many of the surge cases were cases of unaccompanied children, which may take longer to adjudicate than other types of cases because, for example, such a child in removal proceedings could apply for various forms of relief under the jurisdiction of USCIS, including asylum and Special Immigrant Juvenile Status. In such cases the immigration judge may administratively close or continue the case pending resolution of those matters. Therefore, these experts and stakeholders told us that the surge not only added volume to the immigration court's backlog, but resulted in EOIR prioritizing the cases of unaccompanied children over cases that may be quicker for EOIR to resolve.
Fourth, federal court decisions have complicated the task facing IJs in deciding issues in removal cases in recent years, slowing the issuance of decisions. For example, GAO cited "EOIR officials" and IJs who:
highlighted increasing legal complexity as a contributing factor to longer cases and a growing case backlog. In particular, EOIR officials cited Supreme Court decisions in 2013 and 2016, which define analytical steps a judge must complete in determining whether a criminal conviction renders a respondent removable and ineligible for relief.
The cases highlighted by the referenced "EOIR officials" did, in fact, complicate courts' application of the "categorical approach" that IJs are required to apply in determining removability on many criminal grounds (Mathis v. United States, 136 S. Ct. 2243 (2016) and Descamps v. United States, 133 S. Ct. 2276 (2013)), as well as the standard for determining whether a drug offense is "illicit trafficking in a controlled substance" and therefore an "aggravated felony" under section 101(a)(43)(B) of the Immigration and Nationality Act (INA) (Moncrieffe v. Holder, 133 S. Ct. 1678 (2013)). In certain instances, those decisions would have mandated numerous remands from the Board of Immigration Appeals (BIA) and federal circuit courts, and may have rendered otherwise-ineligible aliens eligible for relief; either scenario would have extended the length of numerous removal proceedings for IJ review and briefing by the parties.
More directly, however, the Ninth Circuit's decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016), both increased the number of cases on the immigration courts' dockets in the Ninth Circuit, and gave aliens in that circuit cause to continue to litigate otherwise meritless cases. In that decision, the Ninth Circuit held that aliens in detention for more than six months must receive individualized bond hearings before an IJ to justify their continued detention, and be provided bond hearings every six months thereafter.
Under Rodriguez, an alien is entitled to a bond hearing wherein the government bears the burden of showing by clear and convincing evidence that the alien poses a risk of flight or a danger to the community. This is a higher burden of proof than the "preponderance of the evidence" standard, "which only requires a showing that something is more likely than not to be true." Moreover, unlike an initial bond hearing, where the alien bears the burden of showing that he or she is not a danger or flight risk, as noted, under Rodriguez, the government now bears that burden for continued detention past six months. This decision will encourage aliens with questionable cases to continue to fight their cases, knowing that they have a greater chance to be released after six months.
In addition, as GAO noted:
[T]he percentage of completed cases which had multiple continuances increased from fiscal year 2006 to fiscal year 2015 and that, on average, cases with multiple continuances took longer to complete than cases with no or fewer continuances. Specifically, 9 percent of cases completed in fiscal year 2006 experienced four or more continuances compared to 20 percent of cases completed in fiscal year 2015. Additionally, cases that were completed in fiscal year 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 in fiscal year 2015.
There is, however, significant pressure from federal courts and the BIA on IJs to grant continuances, and little downside to the IJs in doing so.
Under 8 C.F.R. § 1003.29, an IJ "may grant a motion for continuance for good cause shown." Despite this permissive standard, a number of recent decisions have limited that authority.
For example, in Matter of Hashmi, the BIA held:
In determining whether to continue proceedings to afford the respondent an opportunity to apply for adjustment of status premised on a pending visa petition, a variety of factors may be considered, including, but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
The BIA made clear, however, that while "[t]he Immigration Judge may also consider any other relevant procedural factors ... [c]ompliance with an Immigration Judge's case completion goals ... is not a proper factor in deciding a continuance request, and Immigration Judges should not cite such goals in decisions relating to continuances." Nor, the BIA held, were "[t]he number and length of prior continuances ... alone determinative."
Similarly, in Simon v. Holder, the Court of Appeals for the Third Circuit held that the BIA erred in denying a motion to reconsider a case in which an alien had been granted four continuances (over a period of almost two years) including a six-month continuance to seek adjustment of status. When, at the fifth hearing, there was no visa number available to the alien, alien's counsel "sought a further continuance or administrative closure of the removal case until a visa number was available." The government attorney refused to agree, and the IJ ordered the alien deported. The alien's appeal to the BIA was dismissed, and the alien filed a motion to reconsider with the BIA that was denied.
In his motion to reconsider, the alien "argu[ed] that the BIA committed error by failing to address Hashmi;" in its denial, the BIA held "that the Hashmi factors were not applicable because [the alien] could not establish prima facie eligibility for adjustment: i.e., he could not establish that a visa was immediately available." The Third Circuit held (more than five years after the case started) that the BIA erred in relying solely on "the remoteness of visa availability", and remanded the case.
Cases involving pending visas are not the only ones in which IJs feel pressure to grant continuances. If an alien is unrepresented, the court will generally grant at least one continuance to find counsel. If the court subsequently goes ahead thereafter notwithstanding the request of the alien for an additional continuance to find counsel, the case will likely be remanded, and the IJ runs the risk of being accused of denying due process. Similarly, an IJ who refuses to grant multiple continuances to an alien to file an application for relief, or to submit evidence in a case, may be accused by a reviewing court of violating due process. In such an instance, the IJ's reputation would be besmirched, and the BIA or circuit court would simply remand the case, in essence granting the continuance requested.
If an IJ grants a continuance, on the other hand, there is little downside for the court. Attorneys for the government (who work for U.S. Immigration and Customs Enforcement (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 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, even if they don't like 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."
Fifth, Obama administration policies exacerbated the backlog and increased the number of continuances. One example of such a policy is "Deferred Action for Childhood Arrivals" (DACA). As U.S. Citizenship and Immigration Services (USCIS) explains DACA:
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.
To be granted DACA, an alien has to have been born after June 14, 1981, have come to the United States before age 16, and "have continuously resided in the United States since June 15, 2007, up to the present time." USCIS states that even aliens in "removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), may affirmatively request consideration of DACA." In fact, many DACA-eligible aliens were in proceedings at the time that DACA was announced, and many sought (or were granted) continuances to apply for that relief. As one immigration practitioner has put it: "Requesting prosecutorial discretion or seeking time to have a DACA application adjudicated can serve as a basis to seek a continuance. In other words, making such a request can serve as the 'good cause' required by the regulations."
Another Obama administration policy that adversely affected the completion of removal proceedings involved "prosecutorial discretion." Generally, "'[p]rosecutorial discretion' is the authority of an agency or officer to decide what charges to bring and how to pursue each case." Explaining early prosecutorial actions of the Obama administration, the Immigration Policy Council stated in a September 2011 fact sheet:
[M]any community groups ... called for exercising prosecutorial discretion in individual cases by declining to put people in removal proceedings, terminating proceedings, or delaying removals in cases where people have longstanding ties to the community, U.S.-citizen family members, or other characteristics that merit a favorable exercise of discretion.
Over the course of the summer [of 2011], the Obama Administration began to address these requests [and requests from Congress], relying on its ability to exercise prosecutorial discretion in deportation decisions. On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued a memorandum directing ICE staff to consider many of these same factors when deciding whether or not to exercise prosecutorial discretion. On August 18, 2011, in a response to the letter from Senator Durbin and others, DHS Secretary Janet Napolitano declined to grant deferral of removal to DREAM Act students across the board, but indicated a willingness to re-examine individual cases. She announced a two-pronged initiative to implement the June 2011 Morton memo across all DHS divisions to ensure that DHS priorities remained focused on removing persons who are most dangerous to the country.
The new initiative involve[d] the creation of a joint committee with the Department of Justice [to] review each of the nearly 300,000 pending removal cases to assess whether each case me[t] the high priority factors set forth in the June 2011 Morton memo. In order to clear the seriously backlogged immigration court dockets and to better focus resources on high priority cases, all low priority cases [were to be] administratively closed following this review – that is, they [would] be removed from the active docket of the immigration courts.
As the ICE principal legal advisor stated in an April 6, 2015, memorandum (OPLA memo) describing the agency's actions during this period: "In late 2011 and 2012, [ICE] attorneys performed a complete review of all cases pending on the [EOIR] court dockets, exercising prosecutorial discretion as appropriate."
Thereafter, on November 20, 2014 Secretary of Homeland Security Jeh Johnson issued a new memorandum on "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants", also known as the "Enforcement Memo". The Enforcement Memo set the following immigration priorities for DHS:
Priority 1 (threats to national security, border security, and public safety)
Aliens described in this priority represent the highest priority to which enforcement resources should be directed:
(a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
(b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
(c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
(d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and
(e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the [INA] at the time of the conviction.
The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.
Priority 2 (misdemeanants and new immigration violators)
Aliens described in this priority, who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:
(a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien's immigration status, provided the offenses arise out of three separate incidents;
(b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
(c) aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
(d) aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
These aliens should be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.
Priority 3 (other immigration violations)
Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
As the Enforcement Memo stated:
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. (Emphasis added.)
Providing guidance to ICE attorneys on the implementation of these policies, the OPLA memo directed ICE attorneys to:
[C]ontinue to review their cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities. OPLA should generally seek administrative closure or dismissal of cases it determines are not priorities. [ICE] attorneys should also review available information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances are present that may warrant the exercise of prosecutorial discretion. Understanding that these factors and circumstances may change as the case progresses, if further prosecutorial discretion review is requested by the respondent, the case should be reviewed again in light of any changed facts and circumstances. Keep in mind that prosecutorial discretion may encompass actions beyond offers for administrative closure or dismissal of the case, including waiving appeal, not filing Notices to Appear, and joining in motions.
As a whole, these policies required IJs to consider numerous motions to continue and administratively close cases, adding to the burden on their dockets. These policies are likely the reason that, as GAO found, continuances based on a joint request to continue by both parties to continue increased by 518 percent between FY 2006 (1,319 cases) and FY 2015 (8,615 cases).
These policies likely had another effect that is not quantifiable. Taken as a whole, DHS's purported "prosecutorial discretion" policies made it clear that most cases involving non-criminal aliens were not a priority for the Obama administration, and it would have been only natural for IJs to have placed a lower priority on completing those cases. It does not call the diligence of the IJ corps into question to suggest that many of the judges would have concluded that there was no reason to work overtime to complete matters that the president did not consider important, or to keep a docket of such cases on track.
This is especially true in light of the fact that the Enforcement Memo made clear that, as of November 20, 2014, final orders of removal issued before January 1, 2014, were not a priority. Given the lack of enforcement that memo represented, it would have been reasonable for any given IJ in a non-detained court to conclude that a removal order in today's case would no longer be tomorrow's priority, either.
This leads to the final factor: 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." IJ's 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 will logically suffer. This would, in turn, result in more reversals and remands, adding even more cases to the backlog.
In my next post, I will propose changes to improve the backlog, the efficiency of the immigration courts, and the working conditions for the IJs.