Border czar Tom Homan has been successful in reducing illegal infiltration at the US-Mexico border lowest level Since the early 1970s. But their internal enforcement measures have been hampered violent protest and a crisis-level immigration court backlog.
Congress has tried to reduce the backlog by providing funds. additional immigration judgeBut Arrears There has been continuous growth. During the Biden administration, it increased from 1,457,547 cases on the active docket in fiscal year 2021 to 3,716,106 in fiscal year 2024. The current administration has reduced it, but not nearly enough. By the end of August, there were still 3,432,519 Cases on the active docket. If 361,614 Cases on the inactive docket are also counted, bringing the total backlog closer to 4 million cases.
One reason why appointing more judges doesn’t work is the Justice Department Executive Office for Immigration Review has not limited the appointment of its new judges to lawyers only immigration experienceJudges appointed without immigration experience can be expected to take longer to decide cases than judges with experience and that more of their decisions will be appealed. Board of Immigration Appeals,
The Office of Immigration Review should not rely on hiring more judges to reduce the backlog if new judges do not have immigration experience. It would be wise to reduce the backlog by changing the way the court operates.
However, first, the Executive Office of Immigration Review must find out how big the backlog really is.
Aliens in the immigration court docket are expected to maintain court informed about their addressIf they have not done so then they should not be included in the backlog. There is no way to contact them when a hearing is available.
Send address-verification letters to everyone in the backlog. If they don’t respond, send them Notice to attend which contains a date master calendar hearingThese hearings are very useful; Among other things, they provide an explanation of the allegations in the alien’s notice of appearance and identify the legal issues in his case.
The case of aliens who fail to appear may be decided in their absence. Immigration judges presiding over master calendar hearings need clear guidelines for determining whether aliens who fail to appear should be held pending proceedings.in absentia Or simply removed from the backlog.
If it is not possible to give them all a hearing in absentia, which seems very likely to me, then the proceedings in absentia would probably be limited to those aliens who are enforcement priorities.
ICE has the burden of proof at the hearing in absentia to install That the alien is deported and that written notice of the time and place of the hearing and the consequences of non-appearance 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 lawsuit. motion Cancel. To prevail on the motion, the alien must show that their failure to appear was due to extraordinary circumstances, failure to receive notice of the hearing, or that they were in federal or state custody.
track has been found wide differences Rates of asylum rejection by individual judges cannot be explained by differences in the validity of asylum claimants’ persecution claims. This may be due, at least in part, to the practice of appointing lawyers with no immigration experience as immigration judges. In fact, Job Advertisement for Immigration Judges The experience qualifications paragraph on the USAJOBS website doesn’t even mention “immigration.”
Additionally, the Justice Department is in the process of appointing 600 active-duty military lawyers No immigration experience required to serve as a temporary immigration judge for a period of six months. margaret stockExpert in immigration and national security law, thinks it’s a mistake“Immigration law is highly technical and complex,” Stock said. “It’s worse than the tax law, and it’s constantly changing. And it has its own terminology, its own rules that make no sense.”
Additionally, using active-duty military officers as immigration judges may be a violation. Posse Comitatus ActWhich provides that members of the armed forces shall not participate in civilian law enforcement without express statutory authority.
Previous administrations have established dedicated docketBut he used them to prioritize hearing newly arrived unaccompanied children and asylum-seeking families. You cannot reduce the number of aliens in the backlog by expediting processing for new arrivals who are not yet in the backlog. Moreover, it also hinders the judges from disposing of their pending cases.
It would be better to use dedicated dockets that are designed to facilitate backlog reduction. For example, set up a fast-track docket for simple and non-meritorious cases. And establish dedicated dockets that handle cases with similar issues, such as absentee hearings, Haitian asylum cases or aliens accused of committing serious crimes to be deported. Master calendar hearings can provide information needed to address similar issues and establish a fast-track docket.
It should not take much time for judges to become experts on the law governing the issues assigned to them, which should facilitate prompt decisions without sacrificing due process or increasing the possibility of making mistakes. And the Executive Office for Immigration Review could help inexperienced judges by issuing clear precedents on the issues they will handle.
These measures should enable a substantial reduction in the backlog of judges already on the court, and allow more time to recruit judges who have immigration experience.
nolan rapaport Was detailed to the House Judiciary Committee as the executive branch immigration law expert for three years. He later served as an immigration attorney for the Subcommittee on Immigration, Border Security, and Claims for four years. Before serving on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years,
