Deflating the EOIR Backlog Balloon

By Dan Cadman on June 20, 2017

My colleague, Andrew "Art" Arthur has written a series of blogs on a recent Government Accountability Office (GAO) report discussing the sobering state of affairs at the Department of Justice Executive Office for Immigration Review (DOJ EOIR), which is responsible for administering the immigration courts and their appellate tribunal, the Board of Immigration Appeals (BIA). (See here, here, and here.)

The blogs describe the problems that confront EOIR and, therefore, the government generally, in attempting to handle the overwhelming number of removal cases (and requests by alien respondents for relief from removal that are heard as a corollary to those cases). After all, a massive backlog in the immigration systems constitutes the equivalent of a giant cork in the government's entire effort to regulate and control illegal immigration.

Arthur's postings are timely, and not just because of the GAO report. Syracuse University's Transactional Records Access Clearinghouse (TRAC) has issued its own findings that post-date the GAO audit, and reveal that the backlog continues to build. As of the end of May, it had reached nearly 600,000: a 100,000 case increase in the last 12 months alone.

The last blog that Arthur posted discussed methods that can, and must, be used if the government is to get a grip on the courts, reduce backlogs, and ensure a prompt but fair resolution of cases, rather than permit aliens to remain illegally literally for years while awaiting their hearings. It is heartening that the new administration is taking the backlogs seriously.

Even though the Obama White House did initiate some efforts to bring on new immigration judges, everything else it did virtually guaranteed that the backlogs would remain extremely high. It adopted policies that did nothing but encourage potential border-crossers and others to make the trek northward or to overstay their visas. Arthur has noted the importance of cause and effect, where government rhetoric combined with well-publicized enforcement actions really can make a difference in aliens' risk-benefit analyses of whether to cross the border unlawfully or overstay a visa vs. staying at home or leaving when their authorized stay expires.

There are, however, other additional steps outside of the immigration court system that can significantly reduce the backlog, and therefore positively affect the present unacceptable status quo.

Congress has long recognized that illegal immigration is as much a quantitative as it is a qualitative problem. Yes, we must get rid of "the bad guys"; most especially criminals, gang members, national security threats, and the like. But this alone is insufficient, because steps must concurrently be taken to address the quantitative problem of immigration. Failure or refusal to do so, both at the front end (via arrests of ordinary, everyday lawbreakers) and at the back end (via prompt hearings followed by sure removals), results in precisely the kind of Gordian knot the entire immigration control system faces today.

One way to hasten removals is to institute deportation proceedings provided for by laws that do not require presentation of an alien to an immigration judge. Congress has established these avenues for a unique combination of circumstances, some of which recognize the importance of focusing on the qualitative aspects of removals (for instance by authorizing the expedited removal of aggravated felons); and others that recognize the importance of focusing on quantitative aspects of removal by authorizing the expedited removal of recent border crossers. (A full examination of the various types of removals, including those statutorily identified as not requiring hearings before an immigration judge, can be found in the Center's 2011 Backgrounder "Deportation Basics".)

During the Obama administration, virtually all of these types of streamlined removals were either discouraged, outright abandoned, or prohibited in favor of placing every alien into the immigration court. This not only failed to take advantage of statutes established to expedite the removal of aliens identified by Congress as meriting such treatment, but also, of course, exacerbated the backlogs facing immigration judges.

There are signs that the Trump administration is beginning to rectify this inexcusable failure to use the statutory tools provided by Congress: For instance, steps are being taken to expand use of expedited removal of border-crossers to the fullest extent provided for by law.

Another hopeful sign is a recent directive from Attorney General Sessions telling prosecutors in U.S. attorney's offices to seek judicial orders of removal against aliens prosecuted for federal criminal offenses.

This is an extremely useful tool. Under the provisions of 8 U.S.C. Sec. 1228(c), after conviction and at the time of sentencing for his crime, the alien defendant can be ordered by the presiding U.S. District Court judge to be removed from the United States upon completion of his sentence. (Note that there are two very different subsections labeled as 8 U.S.C. Sec. 1228(c). They were enacted at different times, and have never been reconciled by a recodification and re-numeration of the entire section. The Section 238(c) relating to judicial orders of removal is usually listed after the other, unrelated, Section 1228(c). ) Thus, the alien can go straight from a federal correctional institution to the waiting hands of immigration agents who, if they have done their jobs, have obtained the necessary travel documents in advance from the aliens' country of nationality. The only task left, then, until the alien can be removed is to schedule a seat on the repatriation bus or flight out. Although it only applies to federal offenses, this is an extremely efficient way to deport alien criminals, thus preserving taxpayer dollars.

It remains to be seen whether the whole panoply of other non-immigration court methods of due process will once again be pressed into service to effect removals. If they are, then in combination with the other factors outlined by Arthur in his blogs, we might yet actually hope to see backlogs not only stop continuing to balloon but, over the course of time, to actually recede.