Immigration Judges Need 2 Tools to Cut Caseload

COMMENTARY Immigration

Immigration Judges Need 2 Tools to Cut Caseload

Oct 12th, 2019 3 min read

Commentary By

GianCarlo Canaparo

Legal Fellow

Charles "Cully" Stimson @cullystimson

Senior Legal Fellow & Manager, National Security Law Program

There are only about 440 immigration judges in the country who manage those 1 million cases. Zolnierek/Getty Images

Key Takeaways

The backlog of cases is now over 1 million cases, and immigration judges don’t have the basic tools to eliminate that backlog.  

The result is a bloated docket of worthless cases, which takes time away from truly important cases.  

It’s long past time to give immigration judges the same commonsense tools that every other judge in the country has.  

The U.S. Justice Department announced Oct. 10 that the nation’s immigration judges resolved 275,000 immigration cases in fiscal 2019.  

That’s the second-highest number of cases resolved in a single year in the immigration courts’ history.  

That’s the good news. 

The bad news is that the backlog of cases is now over 1 million cases, and immigration judges don’t have the basic tools to eliminate that backlog.  

Unless and until the Justice Department gives immigration judges the same standard case-management tools that federal and state court judges have, they will be swimming upstream against an ever-increasing torrent of cases.

Let’s dive into the numbers again to prove our point.

As we’ve reported previously, the immigration court backlog surpassed 1 million cases in September. Additionally, the Department of Homeland Security filed more immigration cases in fiscal 2019 than any other year in history, 444,000.  That’s about twice as many cases as the historical annual average from 2009 through 2016.  

What’s more, the immigration courts are woefully understaffed. As of Sept. 30, there were only about 440 immigration judges in the country who manage those 1 million cases. By comparison, there are 585 full-time U.S. district judges (along with about 400 semi-retired judges who can maintain as large or small a caseload as they like) who manage about 450,000 federal cases.  

Put another way, the average immigration judge has about 2,270 cases, while the average district court judge (who also benefits from a staff of several law clerks and the support of magistrate judges) has about 450 cases.  

The uptick in case resolutions, therefore, is a testament to immigration judges’ hard work despite their circumstances. Or perhaps it’s a testament to the efficacy of what the Justice Department calls “case-completion goals,” which are, in fact, quotas backed up by threats of poor performance reviews and, by implication, firing.

Given the Justice Department’s desire to move more cases faster, you have to wonder why Justice persists in hamstringing its immigration judges by denying them basic case-management tools.

As we’ve written here and here, immigration judges need to be able to throw out meritless cases. Most immigration cases have no merit, and the statistics prove it. But under the current rules, immigration judges are required to adjudicate meritless cases as though they do have merit, from original filing until the appeal is exhausted.  

The result is a bloated docket of worthless cases, which takes time away from truly important cases.  

The two common tools that federal and state court judges enjoy are the ability to dismiss cases that are inadequately pleaded or legally baseless and the ability to render a judgment on the pleadings.  

These noncontroversial tools allow judges to trim meritless cases from their dockets early on and give the judiciary the chance to focus on cases that have legal merit.

Immigration judges don’t have either of these tools, but they desperately need them, because about two-thirds of asylum petitions and challenges to removal actions are without merit. 

And then there’s judicial-contempt authority. Every state and federal judge in the country can hold lawyers and litigants in contempt if they disobey court orders or ignore deadlines. Immigration judges can’t, even though lawyers and migrants often ignore their orders, fail to show up for hearings, and blow deadlines.

The result, unsurprisingly, is gridlock, which delays justice for people with meritorious cases while people with meritless cases exploit the immigration courts’ impotence, slip through the cracks, and take up illegal residence in the country.

The Justice Department’s failure to give immigration judges contempt authority is truly galling, considering that Congress told Justice to give immigration judges that authority 22 years ago. It’s even more galling, considering that every year from 2006 through 2016, the Justice Department announced in its semiannual agendas that it intended to do so.

That intention quietly disappeared from the agendas in 2017, and as far as anyone can tell, the Justice Department is determined to ignore Congress and cripple its own immigration courts. 

Why the Justice won’t give immigration judges contempt authority is anyone’s guess, but commentators surmise that the department is protecting its trial lawyers from being sanctioned for their malfeasance in immigration court. 

If so, that’s shameful.

Immigration judges are buried under an ever-increasing mountain of work, and the Justice Department expects them to dig their way out while it ties one hand behind the judges’ backs. It’s long past time to give immigration judges the same commonsense tools that every other judge in the country has.  

If the Justice Department won’t do so, Congress should step in and take away its discretion in the matter. Enough is enough. 

This piece originally appeared in The Daily Signal