Commentary: America’s Immigration Court System Is in Trouble

April 11, 2018, 9:20 PM UTC
U.S. Supreme Court Hears Challenge To Obama Immigration Programs
WASHINGTON, UNITED STATES - APRIL 18: Immigration supporters hold up their hands as they come out of the U.S. Supreme Court April 18, 2016 in Washington, DC. The Supreme Court heard oral arguments in the case of United States v. Texas, which is challenging President Obama's 2014 executive actions on immigration - the Deferred Action for Children Arrivals (DACA) and Deferred Action for Parents of American and Lawful Permanent Residents (DAPA) programs. (Photo by Alex Wong/Getty Images)
Alex Wong—Getty Images

Since Donald Trump became president in 2016, the Trump Administration has engaged in what seems to be an unprecedented effort to transform our immigration court system—the Executive Office for Immigration Review (EOIR)—into little more than a deportation machine. The expansion of immigration enforcement has outpaced the growth of EOIR, creating a bottleneck, and the new quotas for immigration judges will just exacerbate the mess.

With a backlog approaching 700,000 cases, everyone agrees our immigration courts are in crisis. But these quotas will force judges to complete an average of three cases per day, affording less than two hours for individuals facing deportation to present their case and for the judge to consider the evidence and render an informed, deliberate decision.

Many cases are complex matters of life-and-death. For these people, how can the right to a full and fair hearing be accomplished in this time? And if the judges do slow down to carefully consider a complex issue, how will that decision be impacted when a judge knows every extra minute could put them closer to being fired?

In January of last year, the president rescinded ongoing efforts at smarter immigration enforcement. He diverted enforcement efforts from criminals and national security targets to simply anyone, and immigration arrests of non-criminals more than doubled last year. I predict that more people with deep ties to the United States are now in deportation proceedings—people with viable cases to remain here who cannot be moved as quickly through the courts.

During the spring and summer of 2017, judges around the nation were unnecessarily pulled out of their courtrooms for temporary assignments along the U.S.-Mexican border, further swelling court dockets. Several judges reported having little to do, border arrests were down in 2017, and net migration from Mexico has steadily been at or near zero. Then, starting last summer, government attorneys began opposing most motions to administratively close or terminate proceedings, even for the most vulnerable members of our society, like abused children and victims of domestic violence, who are pursuing legal avenues to remain in the United States through agencies other than EOIR. Now, their cases remain on the court docket unless the judge closes the case over government opposition.

In response to judges closing or continuing cases over the opposition from government attorneys, Attorney General Jeff Sessions referred two removal cases to himself earlier this year, openly questioning whether judges even have the power to unilaterally close cases or grant continuances for people with pending applications for immigration benefits.

None of these changes are reducing the backlog.


Simply put, the rapid growth and reach of immigration enforcement has outpaced the finite resources of the court system, and judges are being stripped of independence at the same time that the administration is putting anyone it can get its hands on into deportation proceedings, and government lawyers have been commanded to no longer be merciful in cases that can and should be closed.

The court’s focus must be on each individual’s right to a full and fair hearing. The new quotas will only create more litigation and further pressure beleaguered immigration judges, while completely ignoring the key role that the enforcement arm has in alleviating swollen dockets. EOIR can take steps improving efficiency and guaranteeing due process, such as fast-tracking an electronic filing system, preserving smart docket control practices like administrative closure, and promoting the right to legal representation. Ultimately, these strong-arm tactics used against the immigration courts is a reminder that EOIR is an arm of the Department of Justice rather than part of the judicial branch. Congress must establish an independent immigration court system. We have one for tax law. We have one for bankruptcy. Aren’t the stakes higher here?

Jeremy McKinney is an attorney and NC board-certified specialist in immigration law.

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