The Immigration Court Backlog Is Larger than We Know

An administrative closure pig in the backlog python

By Andrew R. Arthur on August 24, 2017

On Tuesday, the Center for Immigration Studies held a panel discussion on the immigration court backlog. While that panel (and the accompanying report) painted a fairly bleak picture of the overwhelming number of cases that the nation's 334 immigration judges (IJs) have on their dockets, a review of the findings of that panel (and a recent Government Accountability Office report on that backlog) reveal that the backlog may be larger, much larger, than even GAO is aware.

GAO found:

[C]ases decided by immigration judges on the merits of the case (merit decisions) declined [between FY 2006 and FY 2015], while cases completed through administrative closure of the case increased over this period. Specifically, the percentage of merit decisions declined from 95 percent of all cases completed in fiscal year 2006 to 77 percent of all cases completed in fiscal year 2015. ... The administrative closure of cases grew by 21 percentage points, from 2 percent of completed cases to 23 percent of completed cases over this same time period.

The members of the panel discussed the administratively closed cases, but I believe that the Obama administration's use of the practice may have "cooked the books" as it relates to the true number of cases that are pending adjudication before the immigration courts.

As the Board of Immigration Appeals (BIA) describes the practice: "Administrative closure ... is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket." The BIA explains that

[Administrative closure] is a docket management tool that is used to temporarily pause removal proceedings. Administrative closure is not a form of relief from removal and does not provide an alien with any immigration status. After a case has been administratively closed, either party may move to recalendar it before the Immigration Court, as the respondent did here, or to reinstate the appeal before the Board.

The decision to administratively close a case is largely within the discretion of the IJ. As the BIA states:

As with a motion to reopen or a request for continuance, we are persuaded that neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party's opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action. Accordingly, we hold that the Immigration Judges and the Board have the authority, in the exercise of independent judgment and discretion, to administratively close proceedings under appropriate circumstances, even if a party opposes.

Don't go looking for this authority in the regulations, because it does not exist there. Rather: "It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations." Put another way, administrative closure allows the immigration courts to shelve cases that it does not want to, or cannot, deal with, at least at the time of closure.

This authority, however, appears to be in conflict with the well-established BIA case law that:

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.

That said, there is no method by which the Department of Homeland Security (DHS) can appeal the BIA's assertion of this authority, short of certification to the attorney general.

There are no statistics on the number of cases that are currently administratively closed, but the number is likely at least an additional 100,000. Why that many? As the American Immigration Council (AIC) recently stated:

Administrative closure is an important tool for attorneys defending noncitizens in removal proceedings as it suspends adjudication of the proceeding, sometimes indefinitely. Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, [DHS] often joined in motions to administratively close cases that did not fall within its enforcement priorities. (Emphasis added).

With respect to the Obama administration's use of administrative closure, beginning in 2011 DHS started setting "priorities" for which removal cases should be pursued. Specifically, it stated it would use "prosecutorial discretion" to enforce those priorities. As a June 2011 memorandum from Immigration and Customs Enforcement (ICE) on "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" (the Morton Memo) stated:

Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise "prosecutorial discretion" if it is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. ICE, like any other law enforcement agency, has prosecutorial discretion and may exercise it in the ordinary course of enforcement. When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency in a given case.

The Morton memo contained a list of factors for ICE to consider when exercising "prosecutorial discretion". It noted, however, that the list "is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis." As the ICE principal legal advisor stated in a memorandum (OPLA memo) describing the agency's actions following the issuance of the Morton Memo: "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." That review included "administrative closure or dismissal of cases [ICE] determine[d were] not priorities."

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 narrowed the removal cases that were priorities for DHS to the following:

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.

Notably absent from this list are single male aliens in removal proceedings who do not have the requisite criminal convictions to be "priorities" thereunder, which in my experience are the vast majority of respondents. Those cases likely ended up in the administrative closure pool. Where they likely remain to this day.

The good news is that the Trump administration has reversed the practice of administrative closure of cases that are not a priority, and has effectively eliminated prioritization as well, returning "prosecutorial discretion" to its proper role as a law-enforcement tool to be used on a case-by-case basis, not a blanket abdication of authority. AIC states that, "in fact, DHS is moving to recalendar cases that previously were administratively closed. Increasingly, attorneys will need to be prepared to file opposed motions for administrative closure and to oppose DHS motions to recalendar previously closed cases."

While this is a positive development, at least in the short run the immigration court backlog will increase. As noted, I believe that there are at least 100,000 administratively closed cases, but there may be many more. Crucially, this means that, in fact, there may be more than 700,000 cases that are, or potentially could be, on the immigration courts' dockets.