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A recent article in the WALL STREET JOURNAL referred to a March 30, 2018 email from James McHenry, the head of the Department of Justice’s Executive Office for Immigration Review (“EOIR”), to immigration judges across the country, indicating that new metrics will require immigration judges to complete three (3) cases per workday. As a lawyer, I am used to dealing with many cases every day, so at first blush, three did not seem like a lot. But in context of the immigration judicial process, it most certainly is. And the stakes are high.
According to A. Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges union, “[t]hey are allocating, on average for a case, no more than two and a half hours,” further noting that political asylum cases often include hundreds of pages of supporting documents and evidence, not to mention countless hours of testimony and deliberation. In addition, because different judges handle different types of cases, including complex ones that take more time, it does not make a whole lot of sense to apply the same standard uniformly to all judges. Again, Judge Tabaddor: “We deal with people who are unaccompanied children, with people who have mental competency issues, with people who have serious criminal convictions, and with people who have fear of returning to their home countries in case of threat of death.”
According to Syracuse University, the immigration court backlog is currently more than 680,000 cases. EOIR’s new requirements will force some judges to adjudicate cases more quickly than they have been. The average cases completed per year by immigration judges, according to the EOIR, is less than 680. The new metric will require judges to complete 700 cases per year.
Judge Tabaddor says that “[y]ou are going to, at minimum, impact the perception of the integrity of the court.” It’s a lot worse than that.
Immigration judges are appointed by the Attorney General and are employees of the Department of Justice. Unlike their regular federal judge counterparts, who have life-tenure, immigration judges can be fired by the Attorney General. Courts certainly have established “aspirational” case completion goals in order to move overall caseloads along, but numeric quotas have never been explicitly tied to judges individual performance evaluations. This will no doubt jeopardize an immigration judge’s ability to remain independent and impartial.
“The very concept [of a quota system] is in conflict with independent decision-making authority of judges,” says Judge Tabaddor, “because it pits the judges’ personal livelihood to mere completion of cases faster through the system, rather than making decisions that are based on the fact and the law of the case as they took the oath to do.”
One could also argue that mandatory quotas will lower the quality of adjudications and perhaps even compromise due process. The Immigration and Nationality Act requires that a respondent in removal proceedings be given a “reasonable opportunity” to examine and present evidence. Most respondents in removal proceedings do not speak English as their primary language. A strict time frame for judges to complete their cases would no doubt interfere with that judge’s ability to assure that this important federal right to examine and present evidence is respected.
Related to this, Judges may now feel more pressure to deny requests for continuances. An unrepresented person making his or her first appearance before an immigration judge may need more time to find an attorney. An individual seeking political asylum may need more time to gather and develop evidence that is often very difficult to obtain from his or her home country. Reasonable continuances are often necessary to allow individuals time to develop their case.
Here’s a novel idea. What about increasing the budgets for the immigration courts? Remember the backlog number above? 680,000 cases! Immigration courts are way under-funded relative to the budgets of immigration enforcement agencies. In the government’s 2017 fiscal year, the combined budgets of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”) exceeded $20 billion. By comparison, EOIR’s was about $420 million.
Let’s face it. By imposing numeric quotas on immigration judges, we’re doing little more than enabling the Trump Administration’s broader agenda of streamlining removal procedures in to so it can deport massive numbers of people at the expense of due process. The immigration court system can only function if due process is respected. This can only be accomplished if the judges have enough time to carefully review each case, conduct a thorough and fair hearing, deliberate the case, and then when all this is done, issue a well-reasoned decision that is consistent with the facts and relevant law.