STUDY: More Judges Needed to Break Immigration Court Backlog

(Brendan Clarey, Liberty Headlines) The Center for Immigration Studies released a report on Monday highlighting the extent of Immigration Court backlogs and offered solutions for the problem.

Report: Immigration & Customs Enforcement Only Catches 0.4% Who Overstay VisasAndrew Arthur, a resident fellow in law and policy for the Center for Immigration Studies, uses the results from a study of immigration courts performed by the Government Accountability Office, an independent government agency that works for Congress, to identify reasons for the backlog:


“There are, simply put, too few judges (and complementary staff) to adequately do the job. With the swearing-in of 11 new IJs [or Immigration judges] in June 2017, there are 326 so-called ‘adjudicator’ IJs, including assistant chief IJs in the field who hear some cases,” Arthur writes in Monday’s report. “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.”

He also cites the seniority of IJs as a limiting factor in the number of cases they take, and why the number of judges on sick leave are higher.


The “Surge”

Arthur points to the surge in families crossing the border as a bigger problem for immigration courts.

“The number of unaccompanied alien children apprehended along the border increased by 76 percent (to 68,541) between FY 2013 and FY 2014, while the number of ‘family units’ increased by 360 percent (to 68,445) during the same period, according to U.S. Customs and Border Protection,” Arthur writes.

He explains further that these cases involving children and families were given higher priority which means that judges were pulled off of easier cases for ones involving children and families which take longer because children can file for certain protections such as asylum and Special Immigrant Juvenile Status.

Case Law

“Federal court decisions have complicated the task facing IJs of deciding issues in removal cases in recent years, slowing the issuance of decisions,” Arthur writes about the increasingly complicated legal climate.

Both Mathis v. United States in 2016 and Descamps v. United States in 2013 made it harder for IJs to categorically determine “removability on many criminal grounds,” writes Arthur. He also points to recent cases that increase the number of bond hearings for aliens, taking yet more time.

Obama Administration Policies

“Obama administration policies exacerbated the backlog and increased the number of continuances. One example of such a policy is ‘Deferred Action for Childhood Arrivals,’” Arthur claims.

The DACA policy protects immigrants who were brought into the country as children, and the policy gave many the opportunity to apply to stay in the country, Arthur writes.

“Another Obama administration policy that adversely affected the completion of removal proceedings is the aforementioned ‘prosecutorial discretion,’” Arthur writes. “As a whole, these policies required IJs to consider numerous motions to continue and administratively close cases, adding to the burden on their dockets. These policies are likely the reason that, as GAO found, continuances based on a joint request to continue by both parties increased by 518 percent between [2006] (1,319 cases) and [2015] (8,615 cases).”

According to Arthur, all of this leads to immigration judges literally burning out, “A crushing docket adds to the stress of being a judge, and as that stress rises, performance logically suffers. This would, in turn, result in more reversals and remands, adding even more cases to the backlog.”

Arthur also points out some solutions that he argues will improve the immigration courts backlog in the long run, despite the many troubles the courts are facing right now.

“Although the problem of the backlog in the immigration courts may seem insurmountable, and the causes of that backlog may appear intractable, in reality, solutions to most of these problems can be found, assuming that the president has the will to enforce the immigration laws and Congress has the will to provide adequate resources to do the job,” writes Arthur.

He points out that Attorney General Jeff Sessions plans to add 125 more IJs by next year, but Arthur stresses the need for more clerks as well.

He points to the President’s position on immigration as one of the most important factors in reducing backlog.

“A change in policy and rhetoric from the executive branch on immigration enforcement at the border and the interior will, however, likely be the biggest driver in lowering the number of incoming cases and shrinking the backlog,” Arthur writes. He highlights four sections of President Donald Trump’s Executive Order 13767.

“The theory behind these provisions appears to be that, if a foreign national considering illegal entry into the United States knows that he or she will be arrested and detained (and possibly prosecuted) pending a determination of removability and relief, that foreign national will be less likely to try to enter illegally. If this is true, the order ostensibly has had the intended effect,” Arthur writes.

And it seems to be working.

“The number of aliens apprehended along the Southwest border has dropped precipitously since the election and since the issuance of this order,” Arthur writes.

He also points out the need to revisit internal policies for agencies like U.S. Immigration and Customs Enforcement, to deter future immigrants from entering illegally, and he argues that increased use of  “self-deportation” would benefit both courts and the immigrants who are rational enough to leave on their own as well as a few other steps to further reduce backlog.

“The backlogs in immigration courts are too large, but they are, to some degree, explained by the poor policies set by the executive branch in the recent past. There is much that needs to be done to remedy the problem, but the Trump administration has taken some crucial first steps,” Arthur concludes. “It must follow through on those steps and its promises on immigration enforcement to reduce those backlogs, and Congress must also do its part by providing the needed funding to fully staff the immigration courts.”