The Department of Homeland Security has recently released data on its immigration enforcement efforts during fiscal year (FY) 2017, noting a significant increase in the number of arrests of undocumented immigrants in the interior of the United States. However, the total number of deportations has not increased as much. In fact, the total number of pending cases in immigration courts nationwide has increased steadily since 2006, in a judicial backlog that immigration advocates and enforcement hawks alike agree is an inefficient system. In November 2017, the backlog ticked up to 650,411 pending immigration cases, a number which has increased nearly 25 percent in this fiscal year alone, and tripled since former President Barack Obama took office in 2009. As a result, the average number of days a case must currently wait to be heard is 691 days, although in several states such as Colorado and Illinois the waiting period to receive a final ruling is closer to 3 years.
At this rate, the average immigration judge has a caseload of about 1,900 cases per year. For comparison, the average caseload of district court judges is around 440 cases per year. Although the Department of Justice has increased its hiring this year, growing the corps of immigration judges to approximately 330, officials have indicated that it would take nearly 700 total judges before witnessing a significant shift in the number of pending cases. In demonstrating its efforts to “slash the backlog,” the DOJ has cited a 16 percent increase in efficiency of final decisions since FY2016. In a hearing before the House Judiciary Committee, Attorney General Jeff Sessions claimed that in the last 2 or 3 months, DOJ has “almost” not added to the immigration court backlog, and that by January 2018 the department will be reducing the backlog.
Despite these advances, to effectively reduce and manage its pending cases, the immigration court system must undergo much greater reform than simply hiring additional immigration judges. To address this crippling backlog, DOJ’s Executive Office for Immigration Review (EOIR) has outlined a series of initiatives for FY2018. These include initial pilot testing of the long-awaited electronic filing and adjudicating system, expanding the efforts of the Fraud and Abuse Prevention Program under a new fraud attorney and investigator to eliminate frivolous and fraudulent cases, hiring additional field supervisors to improve oversight and communication, establishing an EOIR Office of Policy, and introducing a streamlined hiring process which is expected to bring in 61 new immigration judges in early 2018.
The Trump administration has also proposed establishing performance metrics and numerical quotas for immigration judges as part of its larger immigration reforms. Despite backlash from both the advocacy community and the National Association of Immigration Judges claiming that these proposals threaten judicial independence, EOIR has not commented on reports that they would be imposing case-completion quotas on judges. In a November 2017 congressional hearing before the House Subcommittee on Immigration and Border Security, Acting EOIR Director James McHenry did not reject claims that the EOIR would be using numerical and time-based quotas to assess immigration judges’ performance. Democratic members of the subcommittee pressed McHenry on the controversial nature of these completion quotas, arguing they would further exacerbate the challenges judges face in deciding more difficult cases. McHenry defended EOIR’s right to do so by referring to the quotas set by the Immigration Nationality Act as well as standards set by the Government Performance and Results Act in assessing the efficient completion of court rulings. He also affirmed that EOIR was “looking into” implementing numerical metrics for individual judges’ performance with unions like the National Association of Immigration Judges. In the weeks after the subcommittee hearing, Sessions issued a memo publicly affirming the DOJ’s emphasis on increased productivity. The memo criticized unnecessary delays in case rulings, and encouraged EOIR personnel to prioritize “timely and efficient adjudication of immigration cases.”
DOJ has also been criticized over the treatment of unrepresented and unaccompanied children in immigration court. Because illegal immigration is a civil offense, immigrants, including immigrant children, are not entitled to a court-appointed lawyer and thus are often left representing themselves. For the 88,000 undocumented minors whose cases are currently backlogged, this presents a significant challenge in that they may not be old enough to understand the process, even with translation to their language. The Obama administration had created a “rocket docket” that prioritized the cases of unaccompanied minors, a policy criticized on both sides of the aisle, as either an unjust executive overreach to speed grants of relief for minors or a process that resulted in more deportations for unrepresented children. The Trump administration rescinded this policy, but the concern remains about unrepresented minors.
Ultimately, the House immigration subcommittee was able to agree across partisan lines that the immigration court backlog requires urgent attention. With Congress debating a permanent solution for DREAMers as well as additional immigration enforcement measures, the impact of the immigration courts on the overall immigration system will continue to be a key issue.