Introduction

On December 5, 2017, United States Attorney General Jeff Sessions issued a memorandum for the Executive Office of Immigration Review (EOIR) titled “Reviewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest” [PDF version]. The Department of Justice (DOJ) also issued a document outlining the background of the provisions set out in the memorandum [PDF version]. In the memorandum, Sessions detailed principles for the EOIR to follow going forward to reduce its ever-growing case-load. We recently published a post on a Government Accountability Office (GAO) report on the case backlog in the immigration courts [see blog]. In this post, we will examine the new Sessions memorandum.

(Update: Dec. 17, 2018) We have posted an expanded article on both the Sessions memorandum discussed here and the EOIR’s subsequent implementing guidance [see article]. We have also posted articles on the EOIR’s decision to prioritize “family unit” cases [see article] and adjudicating asylum applications within 180 days [see article].

Memorandum Part I: Progress and Challenges

Sessions noted that since the inauguration of President Donald Trump on January 20, 2017, the EOIR has added 50 new immigration judges (as of December 5, 2017). He added that the EOIR would add 60 more immigration judges to its ranks in the next six months.

Since January 20, 2017, Sessions stated that the EOIR had completed 2,800 more cases than it was projected to have otherwise completed. He added that initial case completions in fiscal year (FY) 2017 (Oct. 1, 2016 — Sep. 30, 2017) “rose to the highest level since FY 2012.”

Sessions also noted that the EOIR is developing an e-filing system for immigration courts that is expected to pilot in mid-2018.

However, Sessions noted that, despite the progress, “tremendous challenges lie before” EOIR. To this effect, he explained that there are approximately 650,000 cases pending before immigration courts as of December 5, 2017. He stated that “[a]lthough we showed signs of leveling off the increase in the non-detained portion of the backlog at the end of FY 2017, we nevertheless face a steady stream of criticism that we are overwhelmed and that the backlog is intractable.” Sessions disagreed that the backlog was “intractable,” but he acknowledged that it would “require a concerted effort to address…”

Memorandum Part II: Case Reduction Plan

In order to reduce the substantial backlog of cases in the immigration courts, Sessions outlined five principles for the EOIR to follow in adjudicating cases.

First, Sessions reminded all components of EOIR — the immigration courts, Board of Immigration Appeals (BIA), Office of the Chief Administrative Hearing Officer (OCAHO) — that “we serve the national interest by applying [the immigration laws] as enacted, irrespective of our personal policy preferences.”

Second, Sessions identified “[t]he timely and efficient conclusion of cases” as being in the national interest, and he explained that “[u]nwarrented delays and delayed decision making do not” serve the national interest. He stated that every case in which an alien’s removability under the laws has been established must be resolved either by the issuance of a final order of removal or a grant of relief or protection in accord with the immigration laws.

Third, he stated that meritless cases pending before either the immigration courts or the BIA “should be promptly resolved consistent with applicable law.”

Fourth, he asserted that the use of performance metrics for immigration judges aids “[t]he efficient and timely completion of cases and motions before EOIR…” He added that these metrics are intended to ensure that cases “are adjudicated fairly, expeditiously, and uniformly.”

Fifth and finally, Sessions stated that the attempted perpetration of fraud in the immigration court system can lead to delays and/or the “improper provision of immigration benefits.” Accordingly, he directed that all suspected instances of fraud should be reported to EOIR management and any other agency with an interest in identifying and responding to such fraud.

Assessing the Background Document

The EOIR also released a document providing background data and information underlaying Sessions’ caseload reduction plan. The document includes additional details about the problems noted in the memorandum and how Sessions’ directives will be implemented going forward. It is worth noting that the background document cites to several of the findings that we discussed in the GAO report on the EOIR backlog [see article].

First, the document notes that the pace of the caseload increase has accelerated over the past three fiscal years. FY 2014- FY 2015 saw the caseload grow by 48,000 cases. In FY 2015 — FY 2016, 60,000 cases were added to the caseload. FY 2016 — FY 2017 saw the caseload grow by 100,000 cases.

The background document attributes the rise in caseload to several factors that are slowing down the adjudication of existing immigration cases and incentivizing violations of the immigration laws. The background document singles out the Deferred Action for Childhood Arrivals (DACA) program, exercises of prosecutorial discretion, and the granting of provisional waivers as factors contributing to the growing caseload. It is worth noting that in the first year of the Trump Administration, the DACA memo was rescinded, and the government has already narrowed its use of prosecutorial discretion.

The background document also singles out tactics engaged in by petitioners that it alleged are designed to delay the adjudication of immigration proceedings. To this effect, it notes that the number of continuances granted in immigration proceedings increased by 23% from FY 2015 to FY 2016. Furthermore, as of FY 2012, cases averaged four continuances, which totaled 368 days per continuance. Earlier in the year, the Chief Immigration Judge issued a memorandum revising policies for granting continuances, which we discussed in detail on site [see article].

Citing to the GAO’s findings, the background document also states that the productivity of immigration judges fell by nearly one-third (31%) between FY 2006 and FY 2015.

In the following subsections, we will examine how the EOIR plans to work to address the aforementioned problems in a manner consistent with the Sessions memorandum.

Increasing Adjudicatory Capacity

First, the total number of immigration judges currently stands at 339, up from 273 in September 2016. 384 immigration judges were authorized by Congress in FY 2016. If the new request is approved, EOIR will work to hire additional immigration judges to bring the total to 449.

In April of 2017, Sessions announced a streamlined hiring plan. The background document stated that it ‘is showing signs of reducing the hiring process from 742 days to 6-8 months.” In his April remarks, the Attorney General stated the following [PDF version]:

In addition, we will put 50 more immigration judges on the bench this year and 75 next year. We can no longer afford to wait 18 to 24 months to get these new judges on the bench. So today, I have implemented a new, streamlined hiring plan. It requires just as much vetting as before, but reduces the timeline, reflecting the dire need to reduce the backlogs in our immigration courts.
-Attorney General Jeff Sessions

In conjunction with working to hire more immigration judges, the EOIR is also seeking funding to reduce the ratio of judicial law clerks for all immigration judges from two to one to one to one. The background document takes the position that this would improve productivity and efficiency in immigration courts.

Finally, the EOIR is working to “expedite build-outs of existing space” and to pilot Video Teleconferencing (VTC) immigration adjudication centers (IACs). The latter proposal would allow immigration judges to adjudicate cases remotely “from around the country.”

Other Policies and Provisions

The background documented notes that there are at least 100 courtrooms nationwide that go unused every Friday due to alternate work schedules for immigration judges. Accordingly, the EOIR will work to implement a new “No Dark Courtrooms” policy. This policy will involve hiring new immigration judges for VTC courtrooms in Falls Church, Virginia, and using retired immigration judges to cover otherwise dark courtrooms.

The EOIR plans to establish nationwide scheduling and docketing standards to keep cases moving efficiently to completion.

As the Attorney General stated in his speech, the EOIR’s goal is to replace its operations from a paper-based filing system to an e-filing system.

The EOIR is shifting its emphasis toward the completion of pending cases. To this effect, it will “[p]rovide clear guidance to [immigration judges] about the timely adjudication of cases.”

The EOIR will place more supervisory immigration judges in the field to “improve oversight and ensure more effective implementation of strategies to reduce the caseload.”

The EOIR seeks to strengthen its relationship with the Department of Homeland Security (DHS) in order to “improve docket efficiency and [immigration judge] productivity by managing the input of new cases and more efficiently monitoring cases that are delayed pending an adjudication before [the United States Citizenship and Immigration Services (USCIS)].”

Finally, the EOIR is and will continue to review its existing regulations and policies to determine where changes are appropriate to streamline current immigration proceedings. The background document cites to the memorandum on continuances as an example of this taking place [see article].

Conclusion

Attorney General Sessions and the EOIR outlined several new policies and strategies to manage the EOIR’s growing caseload. Going forward, it is essential to both reduce the EOIR’s backlog and to still ensure that individuals appearing in immigration courts and before the BIA are afforded a full and fair opportunity to have their cases heard and to be vigorously represented by counsel. We will continue to update the website with information about policy changes at EOIR. Any individual who is appearing before an immigration judge should consult with an experienced immigration attorney for case-specific guidance.