Border czar Tom Homan has succeeded in reducing illegal crossings along the U.S.-Mexico border to their lowest level since the early 1970s. But his interior enforcement measures have been hampered by violent opposition and a crisis-level immigration court backlog.
Congress has tried to reduce the backlog by providing funds for additional immigration judges, but the backlog has continued to grow. During the Biden administration, it rose from 1,457,547 cases on the active docket in fiscal 2021 to 3,716,106 in fiscal 2024. The current administration has reduced it, but not nearly enough. As of the end of August, there were still 3,432,519 cases on the active docket. If the 361,614 cases on the inactive docket are counted as well, the total backlog is close to 4 million cases.
One of the reasons why hiring more judges hasn’t worked is that the Justice Department's Executive Office for Immigration Review has not limited its new judge hires to lawyers who have immigration experience. The judges hired without immigration experience can be expected to take longer to decide cases than experienced judges and to have more of their decisions appealed to the Board of Immigration Appeals.
The immigration review office shouldn’t rely on hiring more judges to reduce the backlog if the new judges aren’t going to have immigration experience. It would be wiser to reduce the backlog by changing the way the court operates.
First, however, the Executive Office for Immigration Review should find out how large the backlog really is.
Aliens on the immigration court docket are supposed to keep the court informed of their address. If they haven’t done this, they shouldn’t be included in the backlog. There is no way to contact them when hearings become available.
Send address-verification letters to everyone in the backlog. If they do not respond, send them a Notice to Appear that includes a date for a master calendar hearing. These hearings are very useful; among other things, they provide an explanation of the charges in the alien’s Notice to Appear and identify the legal issues in their case.
Aliens who fail to appear are subject to having their cases adjudicated in absentia. The immigration judges who preside over master calendar hearings need clear guidelines for determining whether aliens who fail to appear should be put in proceedings in absentia or just removed from the backlog.
If it isn’t possible to give all of them in absentia hearings, which seems very likely to me, the in absentia proceedings probably will be limited to aliens who are enforcement priorities.
ICE’s burden of proof at an in absentia hearing is to establish that the alien is deportable and that written notice of the time and place of the hearing, and of the consequences of not appearing, was sent to the alien or his attorney. Under current law, written notice is sufficient if it was sent to “the most recent address provided by the alien."
The judge’s decision is final, unless the alien files a motion to rescind. To prevail with the motion, the alien will have to show that their failure to appear was due to exceptional circumstances, not receiving notice of the hearing, or that they were in federal or state custody.
TRAC has found wide differences in the asylum denial rates by individual judges that cannot be explained by differences in the legitimacy of the asylum claimants' persecution claims. This may be due, at least in part, to the practice of hiring lawyers with no immigration experience to be immigration judges. In fact, the job advertisement for immigration judges on the USAJOBS website doesn’t even mention “immigration” in the experience qualification paragraph.
Moreover, the Justice Department is in the process of hiring 600 active-duty military lawyers with no immigration experience to serve as temporary immigration judges for six-month periods. Margaret Stock, an expert on immigration and national security law, thinks this is a mistake. “Immigration law is super technical and complicated,” said Stock. “It’s worse than tax law, and it’s constantly changing. And it has its own terminology, its own rules that don’t make any sense.”
Moreover, using active-duty military officers as immigration judges may violate the Posse Comitatus Act, which provides that members of the armed forces not participate in civilian law enforcement without express statutory authority.
Previous administrations have established dedicated dockets, but they used them to give hearing priority to newly arrived unaccompanied children and families seeking asylum. You cannot reduce the number of aliens in the backlog by expediting proceedings for new arrivals who aren’t yet in the backlog. Also, this takes judges away from doing their backlog cases.
It would be better to use dedicated dockets that are designed to facilitate backlog reductions. For instance, establish a fast-track docket for simple and non-meritorious cases. And establish dedicated dockets that handle cases with similar issues, such as in absentia hearings, Haitian asylum cases or aliens who are charged with being deportable for committing an aggravated felony. Master calendar hearings can provide the information needed to establish similar issues and fast-track dockets.
It shouldn’t take long for judges to become experts on the law governing issues assigned to similar issues dockets, which should facilitate quicker adjudications without sacrificing due process or increasing the likelihood of making mistakes. And the Executive Office for Immigration Review can help the inexperienced judges by issuing clear precedents on the issues they will be handling.
These measures should make substantial backlog reductions possible with the judges the court already has, and allow more time to recruit judges who do have immigration experience.
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.
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