Immigration courts irredeemably dysfunctional and on the brink of collapse

The American Bar Association (ABA) concluded in a recent report on “Reforming the Immigration System” that the immigration courts are facing an existential crisis. They are irredeemably dysfunctional and on the brink of collapse.

The number of cases pending before the immigration courts has increased to unprecedented levels. The backlog and increased wait times for a hearing are negatively impacting the fairness and effectiveness of the immigration system. People with valid persecution claims have to wait years to be granted asylum, and individuals with non-meritorious claims are allowed to remain in the country for lengthy periods of time.

Moreover, judicial independence has been called into question by politicized hiring practices and the adoption of policies that undermine immigration judges’ ability to perform their role as neutral arbitrators.

According to the ABA, the only way to resolve these issues is to transfer the immigration court functions to a newly-created Article I court system. This would take immigration adjudications out of the executive Branch where they are subject to political influence, and put them in the judicial branch where they would be handled by federal court judges.

The U.S. Tax Court is an example of an Article 1 court system.

This is not a new idea. Thirty-eight years ago, the Select Commission on Immigration and Refugee Policy recommended the creation of an Article I immigration court, and former House Judiciary counsel Peter Levinson made the same recommendation in his law review article, “Specialized Court for Immigration Hearings and Appeals.”

Jeffrey Chase described efforts to make it happen since then in a lecture he gave on immigration court issues recently at Cornell Law School.

Frankly, the fact that it still hasn’t happened makes me doubt that it ever will.

The backlog crisis

The backlog is on the verge of becoming so large that the government may have to suspend asylum hearings until it can be brought under control.

It was 542,411 cases in January 2017, when President Donald Trump took office, and it increased to 1,007,155 cases by the end of August 2019, with an average wait for a hearing of 696 days.

In addition, there are 322,535 pending cases that have not been placed on the active caseload rolls yet. When they are added, the backlog will be more than 1.3 million cases.

These cases were administratively closed by previous administrations. The number of administrative closures grew dramatically from fiscal 1980 to fiscal 2011 because the Board of Immigration Appeals (BIA) made them easy to obtain. It ended in May 2018, when the Attorney General held in Matter of Castro-Tum that immigration judges and the BIA do not have general authority to suspend removal proceedings indefinitely by administrative closure. Administrative closure is only permitted when it is expressly authorized by a regulation or a judicially approved settlement.

On top of all that, the court’s caseload is increasing rapidly. In the first 11 months of fiscal 2019, a total of 384,977 new cases were added.

Expedited Removal Proceedings

Section 235(b)(1) of the Immigration and Nationality Act was supposed to reduce the immigration court’s caseload by restricting asylum hearings to aliens who have a credible fear of persecution or torture.

It provides that if an alien attempts to procure his admission into the United States by fraud or misrepresentation, or lacks a valid entry document, he may be removed without a hearing in expedited removal proceedings, unless he has a credible fear of persecution or torture.

If an alien indicates that he is afraid that he will be persecuted or tortured if he is returned to his own country, he is referred to an asylum officer who will determine whether his fear is credible.  This requires a showing that there is a significant possibility that he can establish eligibility for asylum or for relief under the Convention Against Torture.

Aliens who establish a credible fear are entitled to a hearing before an immigration judge. The rest are removed without further proceedings.

This hasn’t worked.

According to the Executive Office for Immigration Review’s (EOIR) adjudication statistics for fiscal 2008 through the second quarter of fiscal 2019, out of 100 aliens who expressed a fear of returning to their own countries, 81 were found to have a credible fear. However, only 44 of them filed an asylum application, and immigration judges only granted asylum to 14 of them.

In fact, the overall asylum grant rate for all asylum applications adjudicated by the immigration courts is very low. Through the third quarter of fiscal 2019, aliens in removal proceedings filed 157,408 asylum applications and only 12,941 (8.2 percent) of them were granted.

And failure to appear at scheduled hearings is not just a problem at asylum hearings. According to EOIR’s May 2019 Myth vs Facts About Immigration Proceedings, 44 percent of all non-detained removal cases end with an in absentia order of removal because the alien failed to attend his immigration court hearing.

Even with all of those in absentia cases, the immigration courts only completed 262,365 cases through August of fiscal 2019. 

At that rate, even if there were to be a freeze on immigration enforcement to prevent any more aliens from being put in removal proceedings, it would take almost five years to clear the backlog.

It may already be too late to prevent a catastrophic collapse of our immigration court system — a collapse that could force America to stop accepting asylum applications until the backlog can be brought under control.

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.  Follow him on Twitter @NolanR1