• Introduction
• The Sessions Memorandum
• The McHenry Memorandum
  • Case Prioritization
  • Benchmarks and Performance Measures
• Conclusion

Introduction

On January 17, 2018, James R. McHenry, the Director of the Executive Office for Immigration Review (EOIR), issued a memorandum titled “Case Priorities and Court Performance Measures” to all immigration judges [PDF version]. The McHenry Memo implemented a December 5, 2017 memorandum issued by then-Attorney General Jeff Sessions titled “Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest” [PDF version]. In this article, we will examine the Sessions and McHenry memoranda and discuss what they mean for case processing.

The Sessions Memorandum

After discussing the progress that had been made in immigration court case processing since the inauguration of President Donald Trump, the former Attorney General shifted gears to discuss the challenges facing the immigration court system. At the time of the issuance of the memorandum, Sessions noted that there were “approximately 650,000 cases pending before the immigration courts.”

As part of an effort to improve case processing, the former Attorney General set forth principles “to ensure that the adjudication of immigration cases serves the national interest…”

First, Sessions made clear that the components of the EOIR serve the national interest by applying the immigration laws “irrespective of … personal policy preferences.”

Second, Sessions stated that “[t]he timely and efficient conclusion of cases serves the national interest.” Conversely, he wrote, “[u]nwarranted delays and delayed decision making do not.” Earlier in his memorandum, Sessions wrote”: “I … anticipate clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.” That comment foreshadowed Sessions’ immigration precedent decisions restricting administrative closure [see index] and continuances [see article], both of which serve to expedite the resolution of removal proceedings with a final determination on an alien’s removability and/or eligibility for relief or protection.

Third, the former Attorney General wrote that “Meritless cases or motions pending before the immigration courts or the Board of Immigration Appeals should be promptly resolved consistent with applicable law.”

Fourth, the Attorney General stated that the timely and efficient completion of cases by EOIR components “is aided by the use of performance measures to ensure that EOIR adjudicates cases fairly, expeditiously, and uniformly in accordance with its mission.”

Fifth, Sessions directed EOIR components to report any and all suspected instances of fraud “to EOIR management, and any other agency with an interest in the identification of and response to such fraud … consistent with applicable law.”

The McHenry Memorandum

EOIR Director McHenry published a memorandum implementing the general policy guidance from the Sessions memorandum. In this section, we will examine the main points of the McHenry memorandum.

Case Prioritization

Director McHenry began by noting that the “EOIR has always designated detained cases as priorities for completion.” However, in 2014, the EOIR began designating certain non-detained cases as priorities for completion. Since that process started, the EOIR modified its non-detained priority designations three times, with the most recent prior to the publication of the memorandum having been on January 31, 2017.

Director McHenry stated that the “repeated changes in case prioritization have caused confusion and created difficulty in comparing and tracking data over time.” Furthermore, “the frequent shifting priority designations did not enhance docket efficiency.” To this effect, he identified three causes of the failure of the non-detained case prioritizations: (1) Cases were moved to accommodate new priorities without a plan to resolve both new and older cases; and (2) “[T]he [priority] designations did not adequately stress the importance of completing all cases in a timely manner.”

For these reasons, Director McHenry clarified the EOIR’s case prioritization. The memorandum identified the following cases as priorities:

All cases involving individuals in detention and custody;
All cases that are subject to a statutory or regulatory deadline;
All cases subject to a federal court-ordered deadline; and
All cases otherwise subject to an established benchmark for completion.

The memorandum listed all of the cases subject to an established benchmark for completion in an appendix. The benchmark cases are as followed:

1. Immigration judges are expected to complete 85% of all non-status detained removal cases within 60 days of the filing of the Notice to Appear (NTA), the reopening or recalendaring of the case, the remand from the Board of Immigration Appeals (BIA), or the notification of detention. “Status” cases, which are exempt from this benchmark, are cases in which the immigration judge is required to continue the case under binding authority, law or policy, or court order.
2. Immigration judges are expected to complete 85% of all non-status non-detained removal cases within 365 days of the filing of the NTA, the reopening or recalendaring of the case, the remand from the BIA, or the notification of release from custody.
3. Immigration judges are expected to complete 85% of all motions within 40 days of the filing.
4. Immigration judges are expected to complete 90% of all custody redeterminations within 14 days of the request of redetermination.
5. Immigration judges are expected to complete 95% of hearings on the initial scheduled individual merits hearing date.
6. Immigration judges are expected to complete all credible fear reviews within seven days of the initial determination by an asylum officer that an alien does not have a credible fear of persecution. Immigration judges are also expected to complete all reasonable fear reviews within 10 days of the filing of a negative reasonable fear determination.
7. Immigration judges are expected to complete all expedited asylum cases within the statutory deadline and consistent with established EOIR policy. Here, Director McHenry cited to OPPM 13-02, titled “The Asylum Clock” [PDF version].
8. Immigration judges are expected to complete 85% of all Institutional Hearing Program (IHP) removal cases prior to the alien’s release from detention by the IHP custodian.
9. Finally, Director McHenry stated that all electronic and paper records should be accurate and complete.

On November 16, 2018, Director McHenry designated “Family Unit” cases as priorities for completion [PDF version]. You may read about the new policy in our full article on that subject [see article].

On November 19, 2018, Director McHenry added adjudicating asylum cases within 180 days absent “exceptional circumstances” to the list of case priorities [PDF version]. You may read about that new policy in our full article [see article].

Benchmarks and Performance Measures

Director McHenry stated that the EOIR would begin tracking immigration court performance measures on the non-detained case-types now designated as priorities.

Conclusion

The Sessions and McHenry memoranda on the adjudication of immigration court cases have had the effect of pushing immigration judges to resolve designated cases expeditiously.

In general, an alien in immigration proceedings should consult with an experienced immigration attorney immediately. An experienced attorney will not only help an alien present his or her best case in proceedings, but will also have the knowledge and skill necessary to navigate the complexities of the administrative process.