In a July 2017 Backgrounder captioned "The Massive Increase in the Immigration Court Backlog, Its Causes and Solutions", I analyzed the reasons why the immigration court backlog, which was identified by the Government Accountability Office (GAO) in a June 2017 report, had grown so large, more than doubling between FY 2006 and FY 2015. The first factor that I identified was a lack of resources, and in particular too few immigration judges (IJs). Attorney General Jeff Sessions has begun to deliver on his promise to fix this problem.
As I stated in that Backgrounder:
There are, simply put, too few judges (and complementary staff) to adequately do the job. With the swearing-in of 11 new IJs in June 2017, there are 326 so-called "adjudicator" IJs, including assistant chief IJs in the field who hear some cases. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, through May 2017, there were 598,943 pending cases in the nation's immigration courts. This means that there are approximately 1,837 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.
Two months before that Backgrounder came out, Attorney General Sessions, speaking in Nogales, Ariz., vowed to hire more 125 IJs in 2017 and 2018. On September 28, 2018, the Executive Office for Immigration Review (EOIR) the Department of Justice (DOJ) agency with jurisdiction over the immigration courts, announced the investiture of its largest class in history: 46 new IJs. This beat EOIR's previous record, set just weeks before, when 44 new IJs were sworn in.
The press release for that latest investiture stated:
"EOIR continues to make great progress in hiring the immigration judges needed to reduce a backlog of more than 760,000 pending immigration court cases," said James McHenry, Director of EOIR. "Alongside our efforts to improve immigration judge productivity and modernize our information technology systems, growing our immigration judge corps remains a top agency priority."
"EOIR now has 395 immigration judges, an increase of 30 percent since January 2017," said McHenry. "While we are pleased to welcome this historic class of judges, we are not done and expect additional hiring before the end of this year."
All told, 128 immigration judges have been hired by EOIR since January 2017. Coupled with the technological improvements that McHenry referenced (which he detailed at an "Immigration Newsmaker" event at the National Press Club that I moderated in May 2018), that hiring will slow, and eventually lower, the immigration court caseload, which according to TRAC stood at 764,561 in August 2018.
Retirements and attrition will continue take their toll on the immigration judge corps. For that reason, EOIR will need to continue its efforts to add more IJs to the bench. In his Nogales speech, Sessions stated that DOJ had implemented a new plan that would streamline the hiring of those judges. As he explained: "It requires just as much vetting as before, but reduces the timeline, reflecting the dire need to reduce the backlogs in our immigration courts."
Hiring of immigration judges had been identified as a weakness by GAO in its June 2017 report. Specifically, it stated:
[O]ur analysis of EOIR hiring data found that from 2011 to August 2016, EOIR took an average of more than 2 years — 742 days — to hire new immigration judges. According to EOIR officials, this time period included a 3-year hiring freeze from January 2011 through February 2014 that prolonged the hiring process. When we only included hires initiated after the hiring freeze ended in February 2014, we found that EOIR took an average of 647 days to hire an immigration judge.
It is unreasonable to expect any lawyer, particularly those lawyers with the specific qualifications to be an IJ, to wait more than two years for EOIR to make a hiring decision. Simply put, people need to get on with their lives and careers. By paring down the amount of time that it takes to make the hiring decision, DOJ will logically be able to hire a more qualified class of applicants.
Further, there are safeguards in place to ensure that this shortened time frame for hiring does not impact the quality of IJs appointed to the court. In particular, as the Catholic Legal Immigration Network Inc. (CLINIC) has noted: "Newly appointed IJs are subject to a two-year probationary period, during which time they can be terminated from the position fairly easily."
Regrettably, it is rare to expect any government official to meet, let alone exceed, his or her promises. The attorney general has done just that, by hiring 128 immigration judges in less than two years. In the interests of justice, I hope it is just a start.