Despite efforts across many fronts by now-ousted Attorney General (AG) Jeff Sessions, the backlog at the immigration courts has surpassed the one million mark, up from slightly less than three-quarters of a million in a mere matter of months.
Syracuse University's Transactional Action Clearinghouse (TRAC) commented on the increase this way:
In addition, recent decisions by the Attorney General just implemented by the Executive Office for Immigration Review (EOIR) have ballooned the backlog further. With a stroke of a pen, the court removed 330,211 previously completed cases and put them back on the "pending" rolls. These cases were previously administratively closed and had been considered part of the court's completed caseload.
That's an egregious misrepresentation of what happened because it is a selective presentation of facts; it's a perfect example of "true as far as it goes", even though it deliberately doesn't go far enough. The reason those cases were administratively closed is because the Obama administration decided that such cases didn't fit its notion of "enforcement priorities", so they allowed the courts to unceremoniously dump them — it's not that the aliens involved weren't/aren't in the United States in violation of law, and the very fact that they were initially presented to the court reveals that a considerable amount of time, effort, and resources had already been expended by Homeland Security enforcement agents (Border Patrol and ICE) in identifying, locating, arresting, and processing the aliens. What Sessions required was that the courts un-do what should never have been done in the first place and put them back on the docket.
Among Sessions' other accomplishments were the hiring of a whole slew of new immigration judges (IJs), with a second wave to follow, and certifying to himself select cases in a variety of subject matter areas where he (rightly, in my opinion) believed that IJs and their appellate cousins in the Board of Immigration Appeals (BIA) had inappropriately opened the door to aliens seeking relief in areas and ways not intended by the Immigration and Nationality Act (INA).
The increase in the backlog isn't because Sessions was on the wrong track, or that his efforts failed in an attempt to drive the backlog down, or because he willy-nilly forced more cases down the throat of the courts. Rather, it's a simple flow problem: When you have more — much, much more — pouring in the front of the system than trickling out the back, backlogs grow.
That this is happening should surprise no one. As of this past October, arrivals of unaccompanied minors and partial family units, nearly all of whom are Central American, were up something like 118 percent over the prior October, particularly in the Rio Grande Valley sector of the Border Patrol. Virtually all of them are immediately released after claiming a fear of being returned. They are placed into the sluggish non-detained docket where it takes years for a case to be heard, so that even if ultimately denied, these individuals have bought themselves an extended period of stay in the United States. And of course, if denied, most do not report for removal; they flee. In fact, many don't wait that long, they just disappear. Unsurprisingly, this phenomenon of arrest-and-release begets more of the same as other would-be trekkers catch on to the contours of the game.
The administration has been feeling snake-bitten by prior "get tough" efforts such as prosecution for all adult illegal entrants and separation of families that backfired in public opinion before they had begun to make a dent and cause a rethinking on the part of others to travel north and cross illegally. The whole sad and predictable cycle is reminiscent of the joke about not trying to dig one's way out of a trench. But it is, ironically, a step-up in the brazenness of aliens seeking entry, à la the caravans, that may force a change in the equation, as we have seen with the president's recent reliance on some (although not by any means all) of the emergency powers at his disposal.
Interestingly, although the backlog is daunting, it may not be completely insoluble (though some might call me foolish for saying so). Three additional steps come immediately to mind, none of which relies on any need to amend laws; they can be done simply by taking advantage of the laws already on the books.
Thousands of cases are heard by IJs each year — many of them relating to alien re-entrants who have been previously removed, alien criminals, and many more involving illegal crossers apprehended in the interior — that don't even need to be presented to the courts. Congress has already legislated expedited ways of handling those cases. Here they are:
Expedited Removal of Illegal Entrants. Under current regulations, if an alien is apprehended close in time (14 days) and place (100 miles) to his illegal border crossing, he may be detained and removed expeditiously by an immigration officer per INA Section 235(b)(1)(A)(i), without referral to an IJ. But note that the law permitting expedited removal leaves discretion to the Homeland Security secretary to expand expedited removal to any illegal border-crosser anywhere in the United States, provided that he is caught within two years of his illegal entry.
Although — as with those apprehended proximate to the border under current rules — if an alien claims asylum he may not be removed pending a "credible fear" interview, the laws governing asylum make clear that if it has not been sought within a year of entry, an alien may not seek it at all. Because aliens living and working illegally in the interior are much more likely to have let that year of asylum eligibility pass, there is a substantial workload that could be diverted from the courts if the secretary merely uses the mechanism granted her by law to authorize use of expedited removal nationwide. What's more, the longer an alien has waited to make a "credible fear of return claim", even if it's within the year permitted, chances are pretty good that the actual credibility of the claim is diminished. After all, if you were so in fear of your life, why didn't you file your claim immediately?
The question with regard to altering the regulation to permit full use of expedited removal is simple: Why hasn't this been done already?
Expedited Removal of Aggravated Felons. If it is determined that an alien has been convicted of an aggravated felony (as defined in INA Section 101(a)(43)), then he may be detained and summarily removed without referral to an IJ, pursuant to INA Section 238. Often, these cases are instead presented to IJs in the context of the Institutional Hearing Program (IHP) in which they conduct hearings of the aliens while they are still prison inmates. While there may still be need for IHP hearings in the context of aliens serving time in prisons for non-aggravated felony offenses, many (perhaps most) of the crimes severe enough to merit prison are aggravated felonies. The Homeland Security secretary should require ICE and Border Patrol agents to routinely invoke this provision instead of referral to the immigration courts.
Reinstatement of a Prior Order of Removal. INA Section 241(a)(5), provides that if an alien was previously removed from the United States, the apprehending immigration officer has the option of simply "reinstating" the prior order without referral to an IJ, provided that the officer is satisfied that it is the same alien from the prior order. Again, while this provision is sometimes used, it isn't always. This, too, can be cured by a directive from the Homeland Security secretary mandating its use.
All of the above proposals require action by the Homeland Security secretary. But there is an important additional way that the AG can use his authorities to minimize the flow of cases to the immigration courts:
Judicial Order of Removal. Pursuant to INA Section 238(c), a District Court judge presiding over the criminal trial of an alien being prosecuted for federal offenses may, at his or her discretion and at the request of the U.S. attorney, order that alien deported at sentencing. (Note that there are two completely different Sections 238(c) of the INA, enacted at different times and never reconciled. The Section 238(c) relating to judicial orders of removal is usually listed after the other Section 238(c).) Such an order obviates need to refer to the alien for an IJ proceeding. The key point here is that judicial orders of removal must be triggered by a request of the U.S. attorney. Very few U.S. attorneys or their assistants actually make such a request. It is a simple matter for the AG to issue a directive requiring U.S. attorney's offices to take advantage of the provision in every possible case prosecuted in federal district court.
Finally, whoever becomes AG may consider one additional action to follow on the series of steps previously undertaken by his/her predecessor, Jeff Sessions:
Create a Regulatory Equivalent of the Speedy Trial Act. Although Sessions took ameliorative measures to curb reiterative delays in immigration court cases, to date no one has cut to the heart of the matter and established timeframes within which cases must be completed. No doubt IJs would complain; they already have with regard to Sessions' oversight by suggesting that any action that might curb their completely unfettered discretion is somehow abusive of due process. But their complaints have no foundation: 1) as they very well know, "due process" in the context of aliens is a matter of statute, not constitutional consideration, as the Supreme Court itself has repeatedly made clear; and 2) if Congress can establish timeframes for the conduct of criminal trials in the federal district courts, then there is absolutely no reason to think that the AG cannot — and should not — do the same in the context of administrative proceedings. Such an action is entirely within the AG's prerogative in his/her supervisory role of overseeing the BIA and immigration courts, which are both within a division of the Justice Department called the Executive Office for Immigration Review.
Meanwhile the backlog in the immigration courts remains, and Sessions is gone. What will become of the efforts to reform the courts and the BIA is not yet evident. Will Sessions' acting replacement, Matthew Whitaker, take his eye off the immigration ball? How long will he be around anyway? Controversy is already beginning to swirl about the designation. And, if/when replaced with a nominated and confirmed AG, who will that be? Will immigration matters be a priority for him or her, or will they be left to fester in the background as they have for so many years previously?