Something curious is happening in the nation’s 68 immigration courts: In FY 2021, they have completed fewer cases on a monthly average than they have in any year since FY 1993. The numbers are actually worse than they appear, but are particularly puzzling at a time when Border Patrol apprehensions of illegal migrants at the Southwest border have hit 21-year highs. While the reasons for the decline are not entirely clear, Covid has played a role, and the Biden administration is making it worse.
It’s important to note at the outset that this massive decline has occurred at the same time that there are more immigration judges (IJs) hearing removal cases than there have ever been, and it’s not even close.
There are no statistics on how many IJs there were back in 1993, but in 2017, the Government Accountability Office (GAO) reported that there were 212 IJs in 2006, and that the number of IJs increased about a measly 2 percent annually for the next nine years. I started as an INS trial attorney in 1994, and I would be surprised if there were more than 175 IJs nationally at that point.
At least in part in response to that 2017 GAO report, the Trump administration focused on increasing the number of IJs on the bench. From 289 IJs in FY 2016, the IJ cadre grew more than 46 percent by the third quarter of FY 2021, to 543.
Those 212 IJs in FY 2006 completed, on average, 22,769 cases per month (107.4 cases per IJ). The hiring of additional IJs did not lead to a commensurate increase in completions per IJ, but in FY 2019, IJs were still completing an average of 23,082 cases per month (52.2 cases per IJ).
A lot of that decline in average case completions between FY 2006 and FY 2019 had to do with the changing demographics of aliens apprehended at the border. Before FY 2011, 90 percent of illegal-migrant apprehensions were single adults, mostly from Mexico. Most were not eligible for relief and did not seek any immigration benefits, so their cases could be completed quickly.
By FY 2019, more than 55 percent of all aliens apprehended by Border Patrol at the Southwest border were adults and children travelling in “family units” (FMUs), and less than 20 percent of all illegal migrants apprehended there were from Mexico. FMU cases, and cases involving aliens who are not from Mexico, are not as quickly resolved (in general) as those involving Mexican nationals.
Thus far in FY 2021, the nation’s 543 IJs are completing, on average, just 7,967 cases per month: Fewer than 15 cases per month per IJ. There are approximately 20 working days in any given month, meaning that IJs aren't even completing one case a day.
Why has that decline occurred? A good question I can't fully answer.
Court closures resulting from the Covid-19 pandemic have plainly played a role. Some of the nation’s busiest immigration courts (New York, Dallas, and Houston, as well as eight smaller courts) did not reopen for non-detained cases until July 6, a delay that seems inexplicable. That said, the closure of courts beginning in March 2020 did not appear to affect IJs’ ability to complete cases last fiscal year.
In FY 2020, IJs completed 369,253 cases total, an average of more than 19,300 per month (more than 37 cases per IJ). Covid-related closures would have affected at most 42 percent of their dockets (for the last five months in the fiscal year, April through September 2020) if every immigration court were closed (which they weren’t; detained courts remained in operation). Covid alone cannot explain the decline.
That’s where the Biden administration comes into play. On January 20, the administration announced that it was “prioritizing” cases for removal, essentially moving all cases that were not on its own extremely limited list of priorities (terrorists and spies, recent entrants, and incarcerated aggravated felons) to the back burner.
Although those “priorities” were ever-so-slightly expanded in February 18 ICE guidance (non-incarcerated aggravated felons and some gang members were added to the list), the agency still refused to enforce the laws with respect to most removable aliens.
The restrictions on immigration enforcement in the two documents applied not just to the deportation of removable aliens, but also to their prosecution in immigration court. The January 20 memo notes that it applies to “whether to settle, dismiss, appeal, or join in a motion on a case”, in other words directing ICE attorneys (who represent the United States in immigration court) to tank or continue large numbers of valid prosecutions.
Thus, some of the decline in case completions is likely due to ICE trial attorneys seeking continuances so as to determine whether to dismiss valid removal charges (a waste of the resources the administration claims to be conserving), and from those attorneys agreeing to continuances that they would not have acceded to, except for the Biden guidance (ditto).
As the Supreme Court has held, “in a deportation proceeding . . . as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Thus, aliens have every incentive to continue cases, and little impetus to complete them.
Even the implementation of Biden’s policies, however, doesn’t fully explain the total decline in case completions.
As noted, the same Biden non-enforcement guidance all but mandates that ICE attorneys dismiss large numbers of validly filed removal charges. Those dismissals count as immigration court “completions”, even though the cases haven’t really been completed.
Of the 63,440 removal, deportation, and exclusion cases that were completed in immigration court in the first three quarters of FY 2021, just 24,716 (fewer than 39 percent) were orders of removal. An additional 23,478 (37 percent) were either dismissals or terminations of cases that ICE had already filed.
ICE, like the former INS before it, occasionally files charges against aliens who are not removable (and some, by dint of obscure provisions in the law, aren’t aliens, either). Those “bad cases”, however, are one-off affairs — not 37 percent of the total, but more like 0.37 percent of the total (if that).
If those aliens whose cases have been terminated or dismissed have green cards, they get to keep their green cards even if the law says that they should be removed. The only thing that suffers is the rule of law.
If they don’t have any status in the United States, however, a termination or dismissal does not give them any status — they are simply in limbo until either the administration changes its policies or a more responsible administration takes over.
In any event, as a direct (and ironic) consequence of the Biden administration’s non-enforcement regime, IJ case completions should have risen significantly as facially removable aliens were allowed to stay. But they haven’t.
That said, IJ completion numbers are likely to get worse before they get better.
The effort to sidetrack legitimate removal cases in immigration court was given a boost by guidance that ICE’s principal legal advisor (the agency’s general counsel) issued to his trial attorneys in May. It directed those attorneys to exercise “prosecutorial discretion” by dismissing or agreeing to continue cases against otherwise removable aliens, stipulating to those respondents’ eligibility for immigration relief and benefits, and curtailing their appeals of IJ decisions.
As I explained in a June 29 post, that effort was taken up by the Executive Office for Immigration Review (EOIR), the DOJ component that oversees the immigration courts, in June 11 guidance that was issued by EOIR’s acting director to IJs and members of the Board of Immigration Appeals (BIA, the administrative appellate tribunal).
That guidance directs IJs to inquire of ICE counsel whether the agency intends to continue to prosecute individual cases. That is a bad precedent because it involves facially neutral arbiters in the policy decisions made by one of the parties to the case, as I explained in that earlier post.
Article III courts have traditionally stayed away from agencies’ use of prosecutorial discretion, but everything has its limits. What the Biden administration is attempting to do, in essence, is to subvert Congress’s decisions as to which aliens should be removed and which should be allowed to stay under the ruse of “limited resources”, “priorities”, and “discretion”. That blurs constitutional lines.
And the federal judiciary is starting to notice. As I noted in an August 27 post, the Biden administration has been taken to the woodshed by four district courts recently over its efforts to not enforce the law in this way.
In the most recent of the four, captioned Texas v. United States, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas blocked restrictions that the Biden administration had imposed on ICE officers in the aforementioned January and February guidance.
Those restrictions, in effect, prohibit ICE officers from detaining most removable criminal aliens. Judge Tipton held those restrictions directly violated congressional mandates in the Immigration and Nationality Act, and enjoined them (he has stayed his injunction briefly to allow the Biden administration to appeal).
That order, if it stands (and legally it should), will prevent ICE from spiking cases involving aliens who are removable under the criminal grounds of inadmissibility, and most lawfully admitted aliens who are removable under the criminal grounds of deportability.
As a consequence, the EOIR June 11 guidance now carries a big red banner at the top that reads: “This Policy Memorandum may be affected by the recent decision in Texas [] v. United States[]. Please seek clarification regarding relevant points before application to a particular case.”
The Biden administration should not be exposing IJs to potential violations of federal court orders in this way. Nor should it have ever impinged on their independence by directing them to ask ICE whether it planned on continuing to litigate valid cases.
More saliently, however, Judge Tipton’s order would prevent the Biden administration from forcing ICE attorneys to dismiss cases involving criminal aliens, meaning that case completions would fall further.
Soon, if the Biden administration has its way, the only cases that IJs will be hearing will involve criminal aliens. Those cases can be tricky, as they involve the intersection of state criminal statutes and federal immigration law. And most alien criminals with green cards will not surrender them without a court fight. Their cases won’t be completed quickly.
The states are increasingly challenging the Biden administration’s non-enforcement regime, and statistics like these are just going to be more grist for the mill. Patience is a limited commodity, and federal courts are increasingly running out of it with the president and his immigration policies. More importantly, however, voters may start asking why they are paying for more IJs and getting less for their money. That is a question I can’t answer, but one the administration should.