DOJ Tackles Immigration Court Backlogs

By Andrew R. Arthur on November 9, 2017

The Washington Post reported last week that the Department of Justice (DOJ) "is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases."

Specifically, DOJ "said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges' productivity by setting case-completion guidelines" as well as introduce "a 'no dark courtrooms' policy", which would place retired immigration judges in courtrooms that are vacant because their usual occupants are on "alternative work schedules" (AWS).

Each of these is a worthwhile proposal, and each shows an understanding of the problem.

As I stated in my CIS Backgrounder "The Massive Increase in the Immigration Court Backlog", backlogs have slowed the issuance of decisions by the immigration courts to a crawl. In particular:

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.

I discussed my proposal for case-completion guidelines in my last post. While I note that there are disagreements (to say the least) about the potential negative effects of case-completion goals, such guidelines, properly implemented, can change the behavior and the expectations of both the immigration judges and (more importantly) the bar in a way that will expedite, consistent with due process, cases before the immigration court.

There is no disagreement I am aware of, however, that the immigration courts need more judges. As of August 14, 2017, there were 334 immigration judges in our country's 58 immigration courts, which is still 50 judges short of the immigration courts' authorized level of 384 judges. At the same time, there were 640,000 cases pending in those courts as of October 2017, or more than 1,900 cases per judge. Ideally, EOIR would hire hundreds of additional immigration judges to eliminate the current backlog and maintain workflow, but funding that level of judges would require a significant commitment of resources by Congress that has yet to develop.

James McHenry, Acting Director of the Executive Office for Immigration Review (EOIR, the agency with jurisdiction over the immigration courts), described the agency's proposed technological improvements to the House Judiciary Committee's Subcommittee on Immigration and Border Security at a November 1, 2017, EOIR oversight hearing:

Improvements to EOIR's technological infrastructure are also critical to its overall success as it works toward reducing the pending case load. EOIR first identified a need for an electronic filing system in 2001, but has made little appreciable progress on that front in the intervening years. With the support of Congress and the Department, however, we are poised to finally pilot an electronic case filing and adjudication system in FY 2018. EOIR has begun the process of modernizing its case management tools, which includes a move to a cloud based computing environment and implementation of agile development methodology that will speed up product delivery. In addition to the move toward electronic filing, this modernization also includes electronic records of proceeding and judicial applications that aid immigration judges and the immigration court staff. These initiatives are underway and the initial rollout of capabilities, each of which will increase efficiencies and reduce maintenance costs, are expected later this fiscal year.

Having been a congressional staffer with oversight of immigration enforcement for more than seven years, whenever I hear talk of "cloud based computing environment and implementation of agile development methodology that will speed up product delivery", I am reminded of similar lofty proposals that have been floated in the past, only to crash and burn in the cold light of Washington reality. The Government Accountability Office (GAO) detailed the history of those proposals in its June 2017 report, "IMMIGRATION COURTS: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges".

All of that said, however, the benefits of electronic filing cannot be understated. Currently, immigration-court submissions are filed either through the mail or through a window at each of the immigration courts. Despite the diligent efforts of court staff, documents (including applications for immigration relief) can be lost or misfiled. If the court does not discover that critical documents are missing before a hearing on the merits of those applications, cases often (if not usually) need to be reset, in some instances years in the future.

Further, entire records of proceedings (ROPs), the immigration courts' case files relating to each alien who appears before the court, can also be lost or misfiled. While locating these records is a time-consuming effort in a relatively small immigration court (like the one in which I served in York, Pa.), it can be an impossible task in a larger immigration court like New York, Los Angeles, Miami, or San Francisco. Once lost, the ROP must be reassembled by court staff in a time-consuming process requiring the assistance of government and private counsel.

Electronic filing of applications will also make it easier to identify fraud in the asylum process. GAO has described how paper-based filing of asylum applications in the affirmative asylum context hinders asylum and fraud detection and national security officers in U.S. Citizenship and Immigration Services (USCIS) in detecting fraud. The same difficulties thwart fraud detection in immigration court proceedings.

Corrupt practitioners in the past have filed identical (fraudulent) claims in cases involving unrelated aliens, but with a paper-based system, such fraud is difficult if not impossible to detect. Ideally, with the advent of electronic filing of applications, asylum fraud will be more readily detectable, both to criminal investigators as well as to trial attorneys in U.S. Immigration and Customs Enforcement (ICE), the lawyers who represent the Department of Homeland Security in immigration court.

This is particularly timely given the EOIR fraud initiative that Acting Director McHenry described in his November 1, 2017, testimony:

Embellishment, exaggeration, misrepresentation, and fraud remain significant problems in the immigration system, for each erodes respect for the immigration laws, risks public safety and national security, and creates unnecessary burdens of American taxpayers. To combat these problems, EOIR has significantly expanded its efforts to combat immigration fraud in the past year.

Since May, EOIR has been rapidly expanding its Fraud and Abuse Prevention Program. With EOIR's new fraud attorney and investigator, the team worked to expand the Program's footprint by conducting fraud trainings, including 18 trainings for immigration judges and court staff. The Program also launched a redesigned Internet page with expanded information for making referrals when someone suspects fraud. In numbers, the program received and reviewed 187 fraud complaints, marking an increase from 80 during the previous year. The Program made dispositions of 97 complaints while also implementing the agency's first fraud risk assessment.

In 2007 former EOIR Director Kevin D. Rooney informed all EOIR employees that anyone who detected suspicious conduct was required to report it. In June 2017, I issued a memorandum to all EOIR employees reminding them of that responsibility, as well as of their general ethical responsibility, as government employees, to report suspected fraud and abuse, particularly in regard to applications for benefits, relief, or protection in removal proceedings. In short, immigration benefit fraud erodes the integrity of immigration proceedings, and EOIR has no tolerance for those who would present false information to manipulate the immigration system for personal benefit.

Moreover, electronic recordkeeping will allow EOIR greater flexibility in assigning cases to immigration judges in other courts, to be heard via video teleconference (VTC). Currently, EOIR must ship paper ROPs around to other hearing locations. Again, and notwithstanding the diligence of the U.S. Postal Service and FedEx, this can lead to delays in case preparation. With electronic ROPs, an immigration judge in California can electronically access the immigration court's record for an alien whose case is pending in New York. This will maximize EOIR's flexibility in assignment of cases, and will expedite those cases where changes of venue have been granted.

In June 2017, GAO identified EOIR's management of its electronic filing capability as a weakness that has plagued the agency for over a decade. Given the attorney general's renewed focus on electronic filing, I am cautiously optimistic that this issue can now be properly addressed.

With respect to EOIR's VTC improvements, Acting Director McHenry testified:

We have also recently upgraded more than 175 existing VTC systems and deployed an additional 84 new VTC systems to allow for more geographic flexibility for hearing cases. In fact, we are in the process of reopening one VTC hearing location with five immigration judges and establishing a new one with up to fifteen immigration judges in order to increase our adjudicatory capabilities. Further, in partnership with the Department's Bureau of Prisons (BOP) and DHS, we have deployed 44 VTC units to 22 locations to upgrade our Institutional Hearing Program (IHP).

An EOIR fact sheet from 2009 explains the benefits of VTC:

[VTC] is an electronic form of communication that permits two or more people in different locations to engage in audio and visual exchanges. VTC technology allows court proceedings, as well as meetings and training, to be conducted efficiently and effectively, even though participants are not together at one site.

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This alternative communications resource is beneficial to both the immigration courts and the alien respondent in immigration proceedings. For the immigration courts, VTC saves travel time for immigration judges — allowing them greater time to hear more cases. It also promotes effective case management by allowing immigration judges to conduct hearings, on an ad hoc basis, for their counterparts in other immigration courts and thereby assisting with unusually heavy caseloads. For the respondent, VTC can provide for a more expedient hearing.

GAO has noted that "[s]everal immigration court officials, experts, and stakeholders [it] interviewed expressed concern that the use of VTC technology poses challenges for holding immigration hearings." Having used VTC in thousands of cases, I can state that when it works, VTC is an invaluable tool that results in significant cost savings to the American taxpayer. When it doesn't work, VTC is akin to watching a scrambled television signal, or listening to a poor cellphone call, or both at the same time. Improving this system will both expedite hearings and advance the interests of justice in immigration courts that utilize VTC technology.

Finally, the "no dark courtrooms policy" is an innovation that makes clear Attorney General Sessions and his staff understand the shortcomings of the current immigration judge staffing model.

As I explained in my aforementioned CIS Backgrounder: "[Many immigration judges] are on a 'flex schedule', or [AWS], meaning that they work eight nine-hour days and one eight-hour day per pay period, and get one extra day off" per period (two working weeks), resulting in a loss of 26 "working" days per judge per year. AWS is a valuable perk that immigration judges guard zealously. Bringing in retired immigration judges to hear cases during another immigration judge's AWS day off (as opposed to revoking the AWS policy entirely) both maximizes the experience of those immigration judges and utilizes the scarce and valuable physical resource that is an immigration courtroom.

For years, the immigration courts suffered from neglect, both benign and malignant. It is shameful that has taken so long for enhancements to this court system to be undertaken. This may, however, be a situation where repairs are "better late than never."