Backlogged Immigration Courts Could Get Help From Biden Plan, But Some Want a Total Overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That's because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

"It's a system that is pretty badly broken," said Meissner, who ran the former Immigration and Naturalization Service under President Bill Clinton. "So people who are waiting for decisions can be waiting for years at a time. The degree to which those decisions are delayed means that the full functioning of immigration as a system has an incredibly weak link."

But the nation's immigration courts may soon be in for some big changes that not only address the backlog but could also tackle the very structure of how justice is delivered to millions of immigrants fighting for the right to live legally in the United States.

In recent weeks, U.S. Attorney General Merrick Garland reversed several Trump-era decisions that had made winning asylum nearly impossible, especially for victims of domestic violence or gang violence. He also overturned a policy of former Attorney General Jeff Sessions that had stripped discretion from immigration judges over how they handle the flow of cases on their dockets.

And this week, in a "blueprint" for managing migration, President Joe Biden outlined a focus for improving the functioning of the immigration courts — especially the way asylum cases are decided.

Pandemic compounds backlog

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a "credible fear" of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

"What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect," said Marks, speaking in her role with the NAIJ, the judge’s union. "And we do not have universal electronic filing... so there's roughly a million cases or more that are still paper-based. And that really makes hearings from a judge's home much more problematic."

More judges, plus asylum officers who can decide claims

Biden has proposed increasing the budget to hire an additional 100 immigration judges, above the current 539, as well as more support staff. He would increase legal representation for immigrants, and create a dedicated court docket for asylum cases. But the biggest change would be to empower asylum officers to decide asylum claims that are currently handled by immigration judges.

The nearly 800 asylum officers, who work for U.S. Citizenship and Immigration Services, a part of the Department of Homeland Security, already conduct those initial credible fear screenings at the border. And they adjudicate the cases of people who claim asylum while already present in the U.S. But under the current system, if someone asks for asylum as they’re entering the country at a border, they have to make their case before an immigration judge.

A third to a half of all the new cases in immigration court in the last few years have been asylum applications. Transferring those to asylum officers could make a big difference in reducing the court backlog, says Meissner, who has been advocating for such a change. And, she says, there are other advantages.

"It's an interview process rather than a courtroom process... and it is more suitable for asylum seekers to be able to lay out their case and the reasons," she said. "And asylum officers do only asylum cases, so that's their full training. They’re very well trained."

And if a person’s case is denied by an asylum officer, they still have the right to appeal to an immigration judge.

Meissner said she expects the administration will soon issue a proposed new rule to make this change.

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

"What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms," she said. "We need to get the law back on track."

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

"You could have very good rules and laws, but if you don't have fair, unbiased, competent, professional individuals applying the rules in the law, you don't solve the problems," she said. "How can you have a fair game when the referee is unfair?"

Overhauling the entire immigration court system?

Some say the need for change goes beyond better staffing and training, and beyond measures to reduce the case backlog. They say the very structure of the immigration court system undermines its independence and compromises justice for immigrants.

The court agency, EOIR, is a branch of the Department of Justice, which is a law enforcement agency and part of the executive branch, not the judicial branch where federal civil and criminal courts are located. Immigration courts are part of an administrative law system, more like the one that handles appeals of Social Security decisions, for example. The federal rules of evidence don’t apply in immigration court. And though immigrants have the right to be represented by a lawyer, they don’t have the right to counsel at government expense if they can’t afford their own lawyer, the way a criminal defendant does.

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren't convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

"It's an uncomfortable and inappropriate placement for a neutral court system. And that's the inherent structural flaw that we need Congress to fix," she said. "I really feel like it is an idea whose time has come... now."