Introduction
On March 29, 2019, James McHenry, Director of the Executive Office for Immigration Review (EOIR), published a new policy memorandum (PM) titled “No Dark Courtrooms” [see PM 19-11]. The No Dark Courtrooms PM will take effect on May 1, 2019. The PM directs the Office of the Chief Immigration Judge (OCIJ) to ensure, to the maximum extent practicable, that all blocks of available time at immigration courts are utilized for scheduling cases. In this article, we will examine the PM guidance and what it may mean going forward.
Background
The PM defines a “dark courtroom” as an immigration courtroom that is not being utilized during blocks of available time. It cites dark courtrooms as playing a role in the large backlog of immigration court cases, numbering over 850,000 as of the date the PM was published.
The PM blames “[a] combination of sluggish immigration judge hiring between FY 2010 and FY 2016 and the prevalence of overlapping alternative work schedules” as contributing to an increase in the number of dark court rooms. As recently as June 2017, “there were more than 100 immigration courtrooms not being used nationwide each Friday of every week.”
The PM explains that in 2017, the EOIR began working to reduce the number of dark courtrooms. The instant PM “formally codifies EOIR’s policy of ‘no dark courtrooms’ and reaffirms its commitment to reducing unused docket time in order to adjudicate cases in a timely and impartial manner.” The EOIR has already undertaken the following steps to reduce the number of dark courtrooms:
Increased hiring of immigration judges;
Increased the use of video teleconferencing (VTC) for immigration hearings; and
Improved scheduling and docketing practices to make it easier to identify and address dark courtrooms and unused docket time.
The new PM adopts existing initiatives as formal policy and provides additional guidance on reducing the number of dark courtrooms.
New “No Dark Courtrooms” Guidance
The PM “direct[s] OCIJ managers to ensure, to the maximum extent practicable, that all blocks of immigration court time are being utilized for scheduling cases.” As a result, “there should not be a dark courtroom during a court’s normal operating hours unless there is absolutely no immigration judge available, including by VTC.”
Immigration courts have different home docket sizes. In light of this, certain immigration courts may have excess capacity whereas other immigration courts may be overburdened. The PM reminds OCIJ administrators “that immigration courts that presently have excess capacity due to small numbers of cases on their home dockets may hear cases from other courts, either in person or by VTC.”
Some immigration judges may have small dockets while other immigration judges have heavier dockets. The PM reminds OCIJ managers that cases may be reassigned from immigration judges with heavier dockets to immigration judges with lighter dockets in order “to ensure consistent and timely scheduling of cases overall.”
The PM instructs OCIJ managers to “ensure that each individual immigration judge is assigned a sufficient number of cases to allow the judge the ability to meet any applicable performance measures.” The EOIR recently implemented performance metrics for immigration judges. In short, this guidance makes clear that immigration judges should each be assigned a sufficient number of cases to have the opportunity to achieve their applicable performance benchmarks.
The PM then cites to recent guidance from the Chief Immigration Judge on continuances [see article]. It states that “if an immigration judge grants a continuance of an individual merits hearing more than 30 days prior to the scheduled hearing date, the court administrator should endeavor to schedule another case in that slot as soon as possible.” This provision aims to ensure that in any case where a long continuance is granted, the immigration court should endeavor to hear another case in the slot where the continued case would have been heard.
The PM provides two additional options for addressing dark courtrooms. It instructs OCIJ managers to be “mindful of the availability of rehired retired immigration judges and of the ability of immigration judges at EOIR’s immigration adjudication centers to hear cases by VTC.” In the former case, rehired retired immigration judges may be able to hear cases in courtrooms that may have otherwise been “dark.” In the latter case, immigration judges at adjudication centers may be available to hear cases via VTC.
The PM then instructs supervisory immigration judges to cover dark courtrooms a certain number of times on a monthly basis:
Each Assistant Chief Immigration Judge should hear cases at least four times per month while covering a dark courtroom;
Each Deputy Chief Immigration Judge, Principal Deputy Chief Immigration Judge, and Chief Immigration Judge should hear cases at least one time per month while covering a dark courtroom.
The reasoning behind this requirement is twofold. Firstly, the PM takes the position that “[i]t is important for supervisory immigration judges to maintain familiarity with adjudicatory conditions and case issues encountered by non-supervisory immigration judges.” Secondly, by stipulating that the supervisory immigration judges should cover dark courtrooms, the policy aims to reduce the number of dark courtrooms. Supervisory immigration judges may glean exemptions from the requirement if they are “on leave, on detail, or otherwise unavailable in circumstances approved by the Office of the Director…”
In a final point, the PM makes clear that it should not be construed as eliminating or restricting the use of administrative time by immigration judges. During administrative time, “some courtrooms may not be used…” However, the PM instructs OCIJ managers to “ensure that the use of administrative time does not leave courtrooms dark any more than necessary…” In order to reduce the number of dark courtrooms resulting from administrative time, the PM suggests that OCIJ supervisors should assess the availability of VTC or supervisory immigration judges to cover cases.
Conclusion
The “No Dark Courtrooms” policy is designed to speed the scheduling and completion of immigration cases. Despite a recent surge in the hiring of immigration judges and several new precedents which reduce the number of ways that immigration cases may be delayed, the backlog of pending immigration cases has continued to grow. As the PM notes, there are “some cases … scheduled two to three years in the future” at the busiest immigration courts. This backlog not only allows certain aliens who are both removable and ultimately ineligible for relief to remain for years, but also leaves aliens who have bona fide cases for relief and the opportunity to remain in the United States in limbo.
The ultimate effects and effectiveness of the “No Dark Courtrooms” policy will depend in large part on its implementation. The PM focuses more on general principles and guidance for reducing the number of dark courtrooms than it does on specific provisions. That is, it instructs OCIJ managers to assess the availability of remedies for dark courtrooms on a case-by-case basis more than it requires the use of one remedy over another. Whether, for example, VTC may be a remedy in a specific case will depend on the availability of immigration judges to hear cases via VTC and the VTC system’s effectiveness on that day. The same can be said for whether an immigration judge from a different court, a rehired retired immigration judge, or a supervisory immigration judge may be available to cover a dark courtroom. Furthermore, the practicality of specific docket management remedies will vary by immigration court.
Efforts to improve the speed of processing cases at immigration courts run the risk of curtailing the opportunities for respondents in immigration proceedings to make their cases. To be sure, recent precedent decisions entered in part to reduce the backlog of immigration cases have been generally unfavorable to respondents. Any individual facing removal proceedings and/or seeking relief or protection should consult an experienced immigration attorney for case-specific guidance throughout the process.
