The systemic problems with our immigration courts are dire
If you are a person seeking asylum in the United States, the fact is whether or not you get to remain here depends on which immigration judge is assigned to hear your case, according to TRAC’s October 2020 report.
One judge is not like another. For instance, the denial rates of the judges in the New York immigration court ranged from 95 percent down to 3 percent.
There’s a history behind that alarming disparity.
Despite a partial court shutdown on account of the COVID-19 pandemic, the Trump administration’s immigration court in fiscal 2020 issued the second highest number of asylum decisions in the last two decades: 59,291 decisions. The highest was 67,625 — the year before.
With one exception, the number of asylum decisions the immigration court issued during the Obama-Biden administration ranged from 18,593 in fiscal 2015 to a high of 22,319 in fiscal 2016. The exception was fiscal 2017, when it issued 30,254.
The bad news is that no administration has been able to keep up with the overall demand for hearings before an immigration judge.
This has resulted in a crippling backlog crisis, and no progress has been made on reducing it since fiscal 2006, when the Bush administration reduced the backlog from 184,211 to 168,827 cases.
The average wait for a hearing is 811 days, which makes removal proceedings ineffective as a deterrent to illegal immigration.
In fiscal 2019, Trump’s immigration court completed 275,552 cases, which was the second-highest completion total in immigration court history — but at that rate, even if the court stopped accepting new cases, it would take more than four years to clear a 1,262,765 case backlog.
Hiring more judges may have hurt more than it has helped
The administration has been hiring more judges, but a shortage of qualified applicants apparently has made it necessary to lower eligibility standards. The eligibility section of the immigration judge vacancy announcement doesn’t even mention needing immigration law experience.
In December 2019, the Trump administration hired 28 new immigration judges. Eleven of them had no experience in immigration law.
In October 2020, the administration hired 20 more judges, bringing the total up to 520 judges, an increase of nearly 70 percent from what it was in 2017. Only five of the new judges had any experience in immigration law.
The administration also is trying to bring back retired immigration judges. Presumably, they would know the law. But how many of them will return? The pressure to reduce the backlog must make the job very stressful, which may be why some of them retired in the first place.
And there are other reasons why they might not want to return. For instance, the vacancy announcement mentions that 50 percent or more of the reemployed immigration judges may be required to travel frequently, including on weekends.
Why judges need to know the law
Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law.
According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”
For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough: 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.
How many inexperienced immigration judges would know that?
The fact that the immigration court has inexperienced judges may explain why asylum decisions vary so widely from judge-to-judge.
This is vividly illustrated by TRAC’S asylum denial rate chart for decisions rendered from fiscal 2014 to fiscal 2019.
Remember: the denial rates of the judges in the New York immigration court ranged from 95 percent down to 3 percent.
The denial rate overall, however, was 71.6 percent, up from 54.6 percent during the last year of the Obama administration in fiscal 2016.
The bottom line
We are running out of time for finding a solution to the backlog crisis, and if Joe Biden is elected, it will get much worse.
He has promised to end Trump’s policies that restrict access to asylum — and the rest of his enforcement measures. This would open the flood gates to people from all over the world who want to live in the United States.
All they would have to do is say they want asylum when they reach our border.
According to UNHCR statistics, at least 79.5 million people around the world have been forced to flee their homes as a result of conflict or persecution. As of the end of 2019, this number included 26 million refugees and 4.2 million asylum-seekers.
We can’t solve the world’s problems by bringing everyone here.
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. Follow his blog at https://nolanrappaport.blogspot.com.