Watchdog Report Offers Misdiagnosis of Immigration Court Backlog

With more than 325,000 cases pending at the start of October, our nation’s immigration courts are indisputably operating under a crushing backlog. The only question is whether and how it can be resolved. In a little-noticed report issued in early November, the Inspector General of the Justice Department levied a number of criticisms regarding the length of time needed to decide individual cases. Although the report makes a few valid points, its ultimate recommendations would prioritize the quantity of decisions made over the quality of decisions issued.

Rather than focus on the number of immigrants being placed in removal proceedings (a subject addressed more below), the report instead dwells on how quickly immigration judges resolve the cases before them. In fiscal 2006, for example, the report states that 211 immigration judges collectively completed 324,040 cases. In fiscal 2010, 238 immigration judges collectively completed 287,087 cases. The report thus concludes that despite an increase in the number of judges, the “overall efficiency” of immigration courts had declined.

In truth, despite the decrease in case completions, immigration judges still resolved a staggeringly (if not disturbingly) high number of cases. Using the numbers cited in the report, each immigration judge completed an average of more than 1,200 cases in 2010, or five decisions each working day. Given the life-or-death consequences that can result from deportation, immigration judges should be devoting more time to cases, not less. Indeed, history suggests that by disposing of cases at an even faster clip, immigration judges will simply create more and more appeals, thereby shifting the backlog to higher courts.

The Inspector General also faults immigration judges for granting too many “continuances,” or requests to reschedule a hearing for a future date. The report notes that of a pool of nearly 1,800 randomly selected cases, more than half had received at least one continuance—and in those cases, immigration judges rescheduled hearings an average of four times. The report thus recommends that the Executive Office for Immigration Review (EOIR)—the agency that oversees all immigration judges—issue clearer guidance to immigration judges on when continuances should and should not be granted.

However, artificially limiting the number of continuances that immigration judges should grant would also have troubling consequences. As the report itself notes, many continuances are granted to give the government time to run background checks and process applications for immigration benefits. Moreover, because immigrants facing deportation are not provided with an attorney if they cannot afford one—and because immigration law is notoriously complicated—immigration judges routinely grant at least two continuances to find legal representation. By declining to grant continuances in such cases, immigration judges run a high risk of violating noncitizens’ due process rights, getting reversed on appeal, and consequently having to restart the proceedings from the very beginning.

In truth, the real reason the immigration court backlog continues to grow is not because immigration judges are less “efficient” or grant too many continuances. It is because the Department of Homeland Security (DHS) has been placing more and more immigrants in removal proceedings on an annual basis. And with the Secure Communities program now in place in virtually every county, U.S. Immigration and Customs Enforcement (ICE) will continue to be alerted to vast numbers potentially removable immigrants on a daily basis.

Thus, the ultimate solution to the backlog is not to devise ways to resolve cases more quickly, but to comprehensively reform the immigration laws so that otherwise law-abiding immigrants who are currently subject to removal are instead placed on a path to U.S. citizenship. As long as millions of noncitizens continue living in the United States without authorization, immigration courts will inevitably be crushed by a caseload that is both overwhelming and never-ending.

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