The Transactional Records Clearinghouse (TRAC) reports that the backlog in U.S. Immigration Courts reached an all-time high of 228,421 cases in the first months of fiscal year (FY) 2010. However, the Executive Office for Immigration Review (EOIR) is taking important steps to alleviate this backlog by attempting to hire more immigration judges. The number of cases awaiting a hearing is up 23% from the end of FY 2008, and up 82% from 10 years ago. This has led to the average pending time for each individual case at the EOIR to rise to an all time high of 439 days.

The case backlog has likely risen due to the slow pace of hiring immigration judges, which has not kept up with turnover. In 2006, then Attorney General (AG) Alberto Gonzales asked for more funding for immigration judges in response to a number of appellate decisions critical of EOIR. Currently, there is funding for 280 judges, yet there are only 227 employed—down from 229 in April 2009.

The end result of this judge shortage is not only the 439 day average wait time (even worse in L.A. or Boston at 713 and 612 days respectively), but that when petitioners finally get in front of the court, the judge has on average only 70 minutes to hear the case—the second lowest total time to hear a case since 1998.

In a letter responding to the TRAC report, Thomas Snow, Acting Director of EOIR, assured the public that the vacancies were being filled. Snow stated that EOIR has reviewed over 1,750 applications, interviewed 125 candidates, and expects that once AG Eric Holder makes his selections, they will have the full compliment of 280 judges.

While the large caseload, extended processing times, and minimal time per case for a judge are certainly troubling problems, it is encouraging to see that EOIR is making an effort to alleviate this situation. Hopefully, the vacancies will be filled soon and the backlogs and processing times will decrease. If not, or if the new appointments fail to make a dent in caseloads, it will be time to reassess EOIR’s practices and hiring initiative.

On the opposite end of the spectrum, TRAC also reports that rates of federal criminal immigration prosecutions in the first quarter of FY 2010 are down 8.8% compared to FY 2009. If the current rate stays steady for the next three quarters, there will be 83,722 prosecutions in FY 2010—as compared to 91,899 in FY 2009. Despite the drop, the rate of federal criminal immigration prosecutions is still up 5.5% from FY 2008 and 123% from FY 2005.

The decline is driven by a drop in these prosecutions by Customs and Border Protection (CBP), who are responsible for 82% of the investigations leading to federal criminal immigration prosecutions. Other organizations prosecutions rates (Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services) remained steady.

The numbers for specific types of prosecutions changed as follows:

  • Prosecutions for illegal reentry were up 21% for CBP and 9% for ICE in the first quarter of FY 2010.
  • Prosecutions for illegal entry, often carrying no prison sentence, were down 24% in the first quarter of 2010. This represents a potential drop from 52,718 prosecutions in FY 2009 to 39,928 in FY 2010.
  • CBP, which handles 98% of all illegal entry prosecutions, saw the illegal entry prosecutions as a percentage of their total prosecutions drop from 78% in FY 2009 to 58% in the first quarter of FY 2010. Illegal reentry rose from 30% in FY 2009 to 35% in the first quarter of FY 2010.

So what do all of these numbers mean? It’s probably hard to say with any real authority. Likely, because of the economy, the number of persons attempting to cross the border is down. It may also be the case that CBP is focusing more on illegal reentry offenders as opposed to those entering for the first time. What is certain, however, is that AG Eric Holder will face questions about these numbers next week when he comes in front of the Senate Judiciary Committee for an oversight hearing.

Photo by ttcopley