This chart from the Executive Office for Immigration Review's (EOIR) FY2016 Statistics Yearbook shows that the immigration judges (IJs) have not been making any progress on reducing the backlog.
At a recent Center for Immigration Studies panel discussion on the backlog, Judge Larry Burman said, “I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”
By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.
Even if the IJs did not get any new cases, it would take them more than two years to clear the backlog. Double the number of IJs and it would take a year, that is, if the backlog doesn’t increase while the new IJs are being recruited, hired, and trained.
Trump’s backlog reduction plan.
On November 1, 2017, the House Subcommittee on Immigration and Border Security held an oversight hearing on the backlog, but the value of this hearing was severely limited by only having one witness, EOIR’s Acting Director James McHenry.
Subcommittee Chairman Congressman Raul Labrador (R-Ind.) discussed GAO’s June 2017, report on actions needed to reduce the backlog in his opening statement, but he did not have a GAO spokesman at the hearing. In addition to talking about the backlog, he expressed concern over a spike in asylum fraud.
McHenry testified that EOIR will increase its adjudicatory capacity by hiring more IJs and making the court’s operations more efficient. EOIR currently has 336 IJs.
On October 8, 2017, Trump asked congress for appropriations to hire 370 more IJs. According to McHenry, it will take up to 700 IJs to start turning the situation around.
Meanwhile, however, McHenry only expects to have 61 more IJs by spring of next year; and 39 percent of EOIR’s current IJs are eligible for retirement.
EOIR may need to remove some of its IJs.
Judiciary Chairman Bob Goodlatte (R-Va.) expressed concern about EOIR’s IJ hiring procedures. He claimed that, “politicization of the immigration courts and the clear bias by former individuals in top Administration jobs, have led to a degradation of the courts.”
In 2004, the Justice Department paid $11.5 million to settle a class action suit claiming that EOIR’s IJ hiring practices were discriminatory.
And, in 2008, Monica Goodling from the Office of the Attorney General admitted that she had taken political considerations into account in soliciting candidates and reviewing applications for IJ positions and appointments to the Board of Immigration Appeals (BIA).
The fact that EOIR received 379 complaints about its IJs from FY2013 to FY2017, is another reason to be concerned about the current IJs.
Also, disparities in the grant rates of asylum applications indicate that some of the IJs may be applying the law incorrectly, which may indicate political bias or a need for additional training.
The attorney general ordered EOIR to address this problem nine years ago.
EOIR improved IJ training, established a peer observation and mentoring program, and closely supervised IJs with unusually high or low asylum grant rates. But the disparities continued.
In a November 2016 report, GAO estimated a 57 percent variance in grant rates for a representative applicant with the same average characteristics whose case is heard by different IJs. It would have been helpful if someone from GAO had been at the hearing to discuss this report.
Trump only has one viable alternative.
If Trump relies on hiring more IJs to deal with the backlog crisis, his enforcement program will be a dismal failure.
His only viable alternative is to reduce the size of the immigration court’s docket, which he can do by promulgating regulations making IJ hearings unavailable to aliens whose cases can be handled in expedited removal proceedings.
He seems to have had this in mind when he directed DHS to use expedited removal proceedings to the full extent authorized by law, which would include most of the undocumented aliens in the United States who were not lawfully admitted, unless they can establish that they have been here for two years.
In expedited removal proceedings, which are conducted by immigration officers, aliens can be deported without IJ hearings unless they have a credible fear of persecution. If they establish a credible fear of persecution, they are entitled to an asylum hearing before an IJ.
But would the courts stop him?
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.