The Department of Justice (DOJ) issued a press release this week announcing that the department would be utilizing "18 current supervisory immigration judges to adjudicate cases in immigration courts near the southwest border" in response to the border crisis.
As that press release stated:
The supervisory immigration judges will hear cases in-person and use video teleconferencing (VTC) to handle cases at immigration courts and represent a roughly 50 percent increase in the current number of immigration judges .
Those judges will be hearing cases at 10 immigration courts: Eloy (Ariz.); Florence (Ariz.); Adelanto (Calif.); Imperial (Calif.); Otay Mesa (Calif.); Otero (N.M.); El Paso (Texas); Harlingen (Texas); Pearsall (Texas); and Port Isabel (Texas).
The secretary of Homeland Security stated in April that additional immigration judges would be assigned to respond to the "caravan" of aliens who would at point were making their way to the U.S. border, so this is hardly new news. The DOJ press release suggests, however, that those IJs were being assigned not only in response to the so-called caravan, but also to the recent spike in aliens apprehended at the ports of entry and after illegally entering the United States.
This fact was alluded to in that press release when detailing the assignment of additional assistant U.S. attorneys to the border:
Due to a recent increase in the number of apprehensions at the Southwest border, the new AUSA positions announced today will assist in the prosecutions of illegal reentry (8 U.S.C. § 1326), alien smuggling (8 U.S.C. § 1324), and improper entry (8 U.S.C. § 1325) pursuant to the Justice Department's "Zero-Tolerance Policy" announced by Attorney General Sessions on April 6, 2018 and its prior April 11, 2017 directive to AUSAs to prioritize charging immigration offenses. [Emphasis added.]
The reassignment of those supervisory IJs to double the number of judges at the 10 courts listed above will enable the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts, to complete cases involving aliens apprehended along the border at the ports of entry more expeditiously. This will help to ensure that those cases are completed in a timely manner consistent with due process, and that the aliens involved remain in detention (consistent with statute) "for further consideration of" their applications for asylum.
This, in turn, will deter additional aliens from attempting to enter the United States illegally. As I stated in April 12, 2018, testimony before the House Committee on Oversight and Government Reform's National Security Subcommittee:
[A]n increase in detention will make it less likely that aliens will enter the United States illegally, and make it more likely that aliens without meritorious claims for relief who entered illegally will take orders of removal or voluntary departure and go home. [L]ogic and experience suggest that aliens enter the United States illegally to remain at large in the United States. 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 removal or a grant of the privilege of voluntary departure is more advantageous to the alien than continued detention.
Press reports had indicated that an earlier reassignment of immigration judges to the Southwest border had exacerbated the overwhelming backlog of pending immigration cases. The May 2, 2018, DOJ press release disputed that fact, however:
Between March and September 2017, EOIR mobilized over one hundred immigration judges to Department of Homeland Security detention facilities across the country, including along the Southwest border. In October, EOIR projected that the mobilized immigration judges — hearing both in-person and VTC cases — completed approximately 2,700 more cases than expected if the immigration judges had not been detailed.
This echoes then-Acting EOIR Director James McHenry's November 1, 2017, testimony before the House Judiciary Committee's Subcommittee on Immigration and Border Security, in which he stated:
Since March, following the President's Executive Order 13767, EOIR has mobilized immigration judges via both in-person and VTC details to multiple DHS detention centers across the country. EOIR has continually monitored these details, and as needs and circumstances have changed, EOIR has adjusted the nature of the details accordingly. ... EOIR's flexibility in managing this mobilization also produced significant cost savings. Although EOIR estimated in March that the surge would cost $21 million, its actual cost through the end of the fiscal year was approximately $2.5 million.
Viewed holistically, the immigration judge mobilization has been a success. Comparing the results of the surge to historical scheduling and outcome data, EOIR projected that the mobilized immigration judges have completed approximately 2,700 more cases than expected if they had not been detailed. This means that overall completed cases by detailed immigration judges outpaced expected home court deferrals, resulting in a positive net effect on the nationwide caseload.
Director McHenry reiterated this increase in case completions as a result of reassignments during a Center for Immigration Studies "Immigration Newsmaker" event at the National Press Club on May 1, 2018:
MR. ARTHUR: There have been news reports the Trump administration may be reassigning immigration judges from the courts in the interior to the border to respond in a recent spike in apprehensions. Don't these reassignments make the backlog that you've described — the low-690 backlog — worse?
MR. MCHENRY: Oh, when we ran the numbers last year — when there were judges reassigned — we actually found that the judges completed I believe it was 2,700 more cases than we would have expected to have completed at their home courts. So statistically, at least based on the numbers, I'm not sure that's actually true.
MR. ARTHUR: So they're actually getting more cases done when they're assigned in this manner?
MR. MCHENRY: That's what we found when we ran an analysis of the immigration judge surge last year.
Plainly, there will be some costs (both monetary and in terms of delays in completing pending cases) as result of these reassignments. The latter costs should be minimized by the fact that these will be "supervisory" IJs, whose duties (at least in part) are purely administrative. And the monetary costs, as detailed above, should be minimal (at least by government standards), if past trends hold true. In the long run, however, by deterring future entrants, these reassignments should result in a net cost savings, and a reduction in the backlog, current, going forward, or possibly both.