Immigration Court Backlog

Since January 2016, 17 new immigration judges have been sworn in by the Executive Office for Immigration Review (EOIR), which falls under the purview of the Department of Justice (DOJ). Before the creation of the Department of Homeland Security (DHS), the Immigration and Naturalization Service (INS) fell under DOJ as well. Last year, EOIR was given latitude to hire additional immigration judges nationwide. These administrative law judicial positions are basically appointments for life, unlike local state and county court judges. This factor in itself is often problematic, as a sitting immigration judge can become jaded and distrustful after hearing similar claims from respondent’s who appear before them.

It has been recently calculated that there are close to 500,000 immigration cases presently before the EOIR. On average, it takes a respondent over 1000 days (or more than 3 years) to have their final case adjudicated before an immigration judge.

This delay is caused by the sheer number of cases being filed by DHS and the inability of the immigration courts and judges to complete cases. In the case of an individual who is seeking political asylum before the immigration court, they can often wait close to three years to have their day in court. Often, the time in “legal limbo” that these individuals experience compounds the stress they have already experienced, by relocating to a new country and seeking the mercy of the U.S. government, asking them to listen to their cry for help and grant them permission to remain in the country.

In order to address this backlog, Congress has attempted to implement policies in the past few years that force the hands of the immigration judges to hear cases quickly. This is often accomplished to the detriment of the applicants, who are forced to present their case before having the opportunity to seek adequate legal representation. Judges also limit amount of time each individual has to present their case, often cutting off testimony in the interest of time, but clearly not in the best interest of the case.

Transitional Access Records Clearinghouse (TRAC) recently released data that estimated close to 100,000 cases were “completed” in the immigration courts to date, for the 2016 fiscal year (which begins in October, the previous year). When a case is completed, it can mean that the case was terminated by the judge, often because the DHS failed to prove the charges it had launched against the respondent. A closed case, can mean that relief was granted, denied, or voluntary departure was granted. Case completion is a numbers game for many immigration judges who strive for what they commonly refer to as a “rocket docket.”

As long as immigrants keep entering the country and DHS continues to seek their removal, immigration courts will continue to be overwhelmed by the massive number of cases on the docket. Even with the push for expedited hearings, immigration courts simply cannot keep up with the sheer number of cases. Until a solution is reached, individuals will continue to wait their turn to see the judge, unless, like many, they will give up entirely and return home.