The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog

Abstract

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as: Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. The absence of a statute of limitations for civil immigration offenses. Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

What Will It Take to Eliminate the Immigration Court Backlog? Assessing “Judge Team” Hiring Needs Based on Changed Conditions and the Need for Broader Reform

“…However, these issues do not speak to the systemic problems in the broader immigration system that underlie the backlog. This paper incorporates by reference the policy recommendations set forth by Kerwin and Millet (2023) in the earlier CMS study that details those systemic problems.…”

“…We used historical data to look for correlations between IJ productivity, experience, and workload. We calculated IJ productivity as the average number of cases completed by IJs (Kerwin and Millet 2023) We applied a linear fit to the data to look for correlations between the values above. We excluded 2021…”

“…This paper follows an exhaustive CMS study entitled "The US Immigration Courts, Dumping Ground for the Nation's Systemic Immigration Failures: The Causes, Composition, and the Politically Difficult Solutions to the Immigration Court Backlog" (Kerwin and Millet 2023). It provides updated estimates of the number of immigration judges (IJs) and "judge teams" (IJ teams), 1 needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios.…”

Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna

“…EOIR also oversees the federal accreditation process that allows qualified non-attorneys, working for "recognized" charitable organizations to represent immigrants in matters before USCIS (partial accreditation) and in removal proceedings (full accreditation). In a study conducted in partnership with the Ready to Stay coalition, Kerwin and Millet (2022) compared charitable legal immigration capacity, with legal need, as measured by the undocumented population nationwide, by state, and for select counties and large metropolitan area (MAs).…”