People frequently hear about "immigration court" without knowing fully what it is, and where it fits into the US government.
In brief, the immigration court system, technically known as the "Executive Office for Immigration Review" or "EOIR" is part of the United States Department of Justice. This means that is independent of the Department of Homeland Security, though it is subject to the enforcement priorities of the US Atty. Gen.
The court system includes over approximately 330 Immigration Court judges, popularly known as "IJ's" sitting in 29 states and US territories, including multiple specific court locations within certain states. The judges are "administrative law judges" and they function as "judges of the facts and the law" This means they are allowed to consider evidence presented to them for claims which do not have to strictly comply with the formal rules of evidence that exist in in the jury and non-jury trials in state and federal court.
The court has its own detailed procedural rules, which have to be carefully followed. It hears cases of "removal" (the modern term for deportation) as well as certain other kinds of cases. Appeals from immigration judge decisions can be taken to an administrative board in EOIR, called the "Board of Immigration Appeals" or "BIA."
THE IMMIGRATION COURT SYSTEM BACKLOG – HOW BIG IS THAT?
When I began practicing immigration law in 2002 Immigration Court system had a backlog of 166,000 cases. In the intervening years the emphasis on immigration enforcement and removal has resulted in dramatic growth in the case backlog. It was over 408,000 in 2014, 516,000 and 2015, and is now at a stunning 632,000 cases pending in all the court locations. That breaks down to approximately 2085 cases for each immigration judge in the system!
In Newark, where most of my appearances take place, the most current backlog for which we have numbers is over 33,300 cases. These are split among the 8 immigration judges sitting here, resulting in an astounding 4125 cases for each immigration judge in Newark!
THE RESULT: THE COURT SYSTEM STRETCHED BEYOND THE BREAKING POINT
Many cases in locations like Newark are complex. Difficult questions concerning asylum eligibility, immigration classification of crimes and whether they mean that a respondent (defendant) must be deported or may be (depending on his/her "equities in the United States) are time-consuming and difficult. With so many cases to handle, the backlog continues to grow and is not surprising to go one year if not more between "master" (scheduling) hearings until one gets to the final "individual" hearing or trial.
These days a typical case can be expected to run 3 to 5 years. I mentioned in a prior post where I had an asylum case that went through a couple of appeals that the case has been pending for a solid decade. Regardless of what one thinks the outcome of a given case should be, the old saying "Justice Delayed Is Justice Denied" applies.
Other contributing factors to the delays is the "fire brigade" approach that the Department of Justice is taking to addressing certain immigration problems it considers have priority. This results in snap reassignments for "emergencies" affecting judges who sit in places like Newark, and further delay and backlog chaos in the system.
The Trump administration has also suggested that the problem can be "solved" by simply measuring IJ performance on the number of cases the judge completes within a year. As a lawyer interested in seeing that the rule of law is honored, I feel this "solution" is totally unworkable and in fact would be a violation of due process of law.
THE ONLY REAL SOLUTION: A DRAMATIC INCREASE IN EOIR JUDGES AND COURT RESOURCES
We are frequently told about immigration enforcement being given "priority" through the hiring of increased numbers of ICE (Immigration and Customs Enforcement) agents serving inside the United States and additional CBP (Customs and Border Protection) officers being hired to patrol and safeguard America's borders.
If comparable increases in immigration judges are not taken to deal with the increased caseloads resulting from increased enforcement, the overall case backlog will simply increase in immigration court system will fall even further. If we respect the rule of law, we must allocate sufficient assets to ensure that even non- citizens get their proper "day in court" consistent with the due process rights that they have under Supreme Court precedent and our Constitution.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law