No matter how aggressively President Donald Trump tackles illegal immigration, those efforts likely will run into the same roadblock: overburdened immigration courts that cannot keep pace with the deluge of cases.
There are currently about 692,000 pending cases, a number that has doubled since 2012 and tripled since 2009.
And that number does not include 330,000 cases that have been “administratively closed.” Those are cases that technically remain open but have been removed from the active docket, when, for instance, an illegal immigrant has been granted some temporary legal status.
James McHenry, who heads the office in the Department of Justice (DOJ) that oversees the nation’s immigration judges, said Tuesday at an event hosted by the Center for Immigration Studies (CIS) that the administration has made progress. But he said much more needs to be done.
“We’re doing sort of a top-to-bottom review inside the agency. All of our policies, and all of our guidance, all of our regulations — everything that we do — every process that we have, has been subject to a strict review over the past six months to a year,” said McHenry, whose title is director of the Executive Office for Immigration Review (EOIR). “We’re looking for ways to be able to be more efficient. Obviously, we safeguard due process, but the two are not mutually exclusive.”
McHenry delivered his remarks at the National Press Club in Washington, D.C., at the event sponsored by CIS, which favors stricter immigration enforcement.
The director’s job is a daunting one. Despite a recent push to hire more judges, the department remains far below the level needed to begin cutting through the backlog. A Government Accountability Office (GAO) report last year faulted the agency for taking too long to hire judges.
What’s more, the office remains one of the last in the federal government that still uses 20th-century technology. McHenry noted that judges still process cases using paper files stored in blue paper binders.
Judges to Be Evaluated Based on Numbers
Among the most controversial steps undertaken has been to hold judges to a goal of resolving at least 700 cases per year. The directive, which will take effect in October, has drawn fire from the government employee union that represents immigration judges.
“We believe it is absolutely inconsistent to apply quotas and deadlines on judges who are supposed to exercise independent decision-making authority,” National Association of Immigration Judges president A. Ashley Tabaddor told The Dallas Morning News last month.
Immigrant advocacy groups also have warned that focusing on efficiency could result in an erosion of quality.
McHenry pushed back against the notion that the target is a quota. He said there will be some flexibility to consider extenuating circumstances.
“It’s important to clarify, though, that immigration judges have been subjected to performance evaluations for a number of years … It’s not a new concept or a new idea to evaluate judges.”
“It’s important to clarify, though, that immigration judges have been subjected to performance evaluations for a number of years … It’s not a new concept or a new idea to evaluate judges,” he said. “The new part is having sort of numeric standards.”
Matthew O’Brien, director of research at the Federation for American Immigration Reform (FAIR), told LifeZette that numerical benchmarks frequently are used to evaluate judges in other courts.
Productivity has declined, based on raw statistics. In fiscal year 2006, immigration judges completed an average of 1,356 cases; that number had dropped to 807 by fiscal year 2015.
McHenry said those numbers have dropped for a variety of reasons. Judges are postponing hearings more frequently, for instance. And McHenry said there are more asylum cases, which tend to be more complex and time-consuming.
O’Brien said he suspects part of the reason is that immigration lawyers intentionally are trying to delay and slow cases as long as they can because they have a perverse incentive due to the way immigration law works. The law favors illegal immigrants who have been in the United States longer.
“Most of the qualifications for some kind of relief have to do with the ties that people have to this country,” he said.
To address the old technology, McHenry said the agency plans to pilot an electronic filing system in five courts this summer, with an anticipated national rollout next year.
“[The paper records] do take up space, I mean, space that we could be using for courtrooms, for additional judges, additional personnel,” he said. “They pile up. You know, sometimes, we send them to the Federal Records Center. But we also have to keep a lot of them on site in the courts.”
O’Brien said it is “a bit shocking this has gone on as long as it has.”
Administration Hiring More Judges
McHenry said the agency has hired 56 new immigration judges in the past year and a half and has made five separate advertisements for 84 more judges, including an advertisement that posted this week.
McHenry said he anticipates four new judges starting this month and 40 to 50 by the end of the fiscal year in September.
The omnibus spending bill passed earlier this year by Congress authorizes the administration to hire an additional 150 judges, which would bring the total to 484.
At that level, McHenry said, judges would begin to complete cases faster than new ones get filed. He added that Trump proposed a budget last fall that would bring the total to 700 judges. He said there would be a “significant reduction” in the backlog at that level.
“Every judge that we get onboard is a weapon against the backlog,” he said.
But McHenry said other reforms are needed. “The judge part is a necessary [component] but it’s not sufficient by itself.”
McHenry said the agency needs more support staff as well — law clerks, interpreters and other positions.
McHenry said he is trying to improve efficiency in other ways, including bringing back retired judges, transferring cases from busier courts to those with smaller caseloads, and making better use of courtroom space.
The GAO report noted that it took the government an average of 742 days — more than two years — to complete the hiring of a new judge. McHenry said the administration has managed to drive that time down to about a year.
Attorney General Jeff Sessions in April last year announced a streamlined hiring process.
“The key thing that was different is that it actually imposed deadlines,” McHenry said. “The old process that had been in place since 2007 had no real deadlines … Something as simple as imposing deadlines for each of the components to review has actually had a significant impact.”