Despite a historic backlog of pending immigration cases and a lack of immigration judges, the head of the Executive Office for Immigration Review [EOIR] within the Department of Justice says that efforts to address systemic challenges are beginning to bear fruit.
Director James McHenry was questioned for over an hour Wednesday by the Senate Judiciary Subcommittee on Border Security and Immigration, and in almost therapy-session fashion the lawmakers and witnesses commiserated over a broken system that may need congressional help in order to work as intended.
Subcommittee Chairman John Cornyn (R-Texas) said there is no consensus on exactly how the courts should change.
“Earlier administrations, both Republican and Democrat, have struggled with how to reduce the case backlogs in the immigration courts and, unfortunately, Congress has never provided the full extent of immigration judges and support staff truly needed to eliminate the backlogs,” Cornyn said. “As a result, backlogs continue to grow, from 129,000 cases in 1998 to a staggering 684,000 as of February 2018.”
McHenry said that President Trump’s proposal last year to increase the number of immigration judges to 700 from the current number of 334 is moving forward; by July 84 new judges will be sworn in, and he envisions the process for hiring new judges to take just eight months rather than over a year as customary. He also said that a pattern of declining immigration judge productivity — from 1,356 cases completed per judge in fiscal year 2006 to 807 case completions per judge in FY 2015 — is “deeply troubling.”
“Last fall the president proposed adding additional immigration judges up to a number of 700,” McHenry said. “If we could get 700 on board, especially with our performance measures, we could complete over 450,000 cases a year. That would eviscerate the backlog.”
Ranking Member Sen. Dick Durbin (D-Ill) criticized the Justice Department’s recent announcements regarding the immigration courts system, from new performance metrics for judges who will now be expected to complete 700 cases a year to the elimination of the Legal Orientation Program, which critics are calling an assault on justice. The LOP program advises illegal immigrants of their rights and the court process before appearing before a judge. Durbin was successful in cosponsoring a bipartisan immigration reform bill in 2013, but it failed in the House of Representatives.
“Now our immigration courts face their greatest challenge — a president and attorney general who are calling into question our founders’ promise that all persons in our country are entitled to due process under the law,” Durbin said. “Today, 334 immigration judges face 680,000 pending cases. This backlog has grown by 145,000 cases just since President Trump was sworn into office. A period when we’ve received reports that border activity is at an all-time low… An immigration judge should be solely focused on fairly deciding the case before him or her and should not have to worry that their job is at risk if they don’t do it quickly. Congress has the power to combat these attacks on due process.”
The U.S. Government and Accountability Office last June released a report evaluating the EOIR and got opinions from stakeholders on how to restructure the immigration court system, including creating an independent court system outside of the executive branch, a new independent administrative agency within the executive branch and a hybrid approach within the executive branch.
“Some experts and stakeholders stated that establishing a court system outside of the executive branch could increase the perceived independence of the system,” Rebecca Gambler, the director of Homeland Security and Justice at the GAO, testified. “Some told us that a court system outside of the executive branch might give immigration judges and the appellate body more judicial autonomy over courtrooms and dockets and might also improve the professionalism and credibility of the workforce.”
Hilarie Bass, the president of the American Bar Association, testified that there has been no major structural change within the EOIR since it was established in 1983. She said that its existence within the Department of Justice under direct control of the attorney general is “a fatal flaw to the reality – and perception – of independence.”
“Immigration judges at both the trial and appellate level must be sufficiently independent, with adequate resources, to make high-quality, impartial decisions without any improper influence, particularly where that influence makes the judges fear for their job security,” Bass said in her written testimony.
The life-changing decisions that judges make over the lives of immigrants should not be taken lightly, said Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges.
“In every sense of the word, on a daily basis, when presiding over our case in our courts, we are judges: we rule on the admissibility of evidence and legal objections, make factual findings and conclusions of law, and decide the fate of thousands of respondents each year. Last year, our decisions were final and unreviewed in 91 percent of the cases we decided,” Tabaddor said. “In addition, and in contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.”