Immigration judge quotas will not eliminate the backlog crisis

Immigration judge quotas will not eliminate the backlog crisis
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Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsRosenstein warns of growing cyber threat from Russia, other foreign actors Key GOP lawmaker throws cold water on Rosenstein impeachment With new immigration policy, Trump administration gutting the right to asylum MORE has established performance goals for the immigration judges in an effort to deal with the immigration court backlog crisis. In addition to meeting at least half of the deadlines for specified types of cases, judges will have to complete at least 700 cases-a-year to receive a “satisfactory” performance rating. They currently average 678 cases-a-year.

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The National Association of Immigration Judges opposes the performance goals. Among other things, they point out that the current backlog cannot be attributed to a lack of productivity on the part of judges, and the imposition of quotas and deadlines on judges will impede justice and due process.

But here’s a better reason to oppose the quotas: Session’s performance goals are not an effective way to deal with the backlog crisis.

As of March 5, 2018, there were approximately 350 judges, and the immigration court had 684,583 pending deportation cases.

If the judges do 700 cases-a-year, it will only dispose of approximately 245,000 cases-a-year. At that rate, it would take almost three years to eliminate the backlog … if there are no new cases. But there will always be new cases.

Sessions also will hire more judges, but the problems the immigration court is having with the current judges should be addressed first to determine whether the selection process needs to be changed.

From FY2013 through FY2017, 379 complaints were filed against the judges, approximately 30 percent of the judges every year!

Also, there are gross disparities in the way the judges are applying the law.

TRAC Immigration reports that the outcome at asylum hearings over a six-year period depended largely on which judge was assigned to the case.

For the 6,922 asylum seekers whose applications were adjudicated at the San Francisco Immigration Court, the likelihood of a denial varied from only 9.4 percent up to 97.1 percent, depending on which judge handled the case.

For the 1,233 individuals whose cases were heard at the Newark Immigration Court, the likelihood of a denial ranged from 10.9 percent up to 98.7 percent, depending on which judge handled the case.

In other words, the likelihood of being granted asylum in these courts could be as high as 90 percent or as low as 3 percent, depending upon which judge handles the case.

According to a Reuters report on disparities in how frequently immigrants are deported in removal proceedings, “the findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.”

GAO makes similar findings in its November 2016 report on variations in the outcomes of applications across immigration courts and judges. GAO also found that judges with 7 years of experience were 28 percent less likely to grant asylum than less experienced judges, which could be a factor in explaining the disparities.

Are unqualified judges being hired? Is the training program for new judges inadequate?

To some extent, the problem may be due to misconduct on the part of officials involved in the selection process.

For instance, in 2004, the Justice Department paid $11.5 million to settle a class action suit claiming that the immigration judge hiring practices of the Executive Officer for Immigration Review were discriminatory. Four years later, Monica Goodling from the Office of the Attorney General admitted that she had taken political considerations into account in soliciting candidates and reviewing applications.

In any case, it is apparent that Sessions isn’t going to eliminate the backlog crisis by setting performance goals or hiring more judges. He has to reduce the number of cases the immigration court has to handle.

The need for hearings before an immigration judge can be reduced by making more use of expedited removal proceedings, which are conducted by immigration officers.

Trump prepared the way for this option with his Executive Order, “Border Security and Immigration Enforcement Improvements,” in which he orders the DHS Secretary to use the expedited removal proceedings authorized by section 235(b)(1)(A)(iii)(II) of the INA for aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien in expedited removal proceedings wants a hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

But expedited removal proceedings will be of limited use because many of the aliens in the pending cases have been here continuously for two years. Perhaps the numbers should be reduced further with a legalization program.

If Trump does not find a way to eliminate the backlog crisis, his immigration enforcement efforts will fail.

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.