Immigration
courts irredeemably dysfunctional and on the brink of collapse
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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
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