A Modest Proposal to Solve the Immigration Court Backlog


Seven hundred thousand backlogged cases in Immigration Court is a crisis for aliens entitled to relief, for detained aliens and the taxpayers who are paying for their detention, for the reputation of the US in the world community, and for the administration of justice. Justice delayed is justice denied.

Much of the backlog is caused by non frivolous applications for asylum. Two axioms upon which most agree are

1. Aliens have a human right recognized by international and United States law to request asylum, and

2. Regardless of the inconvenience, due process of law should be adhered to in evaluating asylum claims.

Immigration Judges have extensive responsibilities and difficult jobs, requiring deep understanding of complex immigration law principles as well as the broad spectrum ability to apply criminal, family, even constitutional law. IJs are what economists call “scarce resources,” and as such are in so much demand that with approximately 2000 respondents per judge, and cases in 2018 being docketed for 2021 and beyond, the immigration court system has for many already collapsed. One proposal would increase the authorized compliment of judges by

125. That 45% increase would be welcome, but it would not approach a solution, especially after a June 28 policy change encouraging more NTAs to be issued by Homeland Security agencies in addition to ICE . Let’s discuss a modest proposal that would both solve today’s crisis and provide more efficiency and fairness.

A large part of the immigration court backlog is the litigation of asylum claims which by their very nature require numerous hours to adjudicate. The respondent is motivated to produce as much documentary and testimonial evidence as can be assembled. ICE must have the opportunity to challenge proffered exhibits , cross examine witnesses and produce countervailing evidence. Translators are often necessary and always time consuming to use multiple languages. Criticizing the current dilatory asylum system, President Trump labeled “asylum” a magic password, and has suggested overcoming the magic by eliminating due process, the opportunity to be heard by an impartial decision maker. Our dilemma is how to expeditiously and efficiently adjudicate asylum cases without sacrificing due process.

The solution is to allow and encourage the appointment by Immigration Judges of special masters or magistrates to whom very specific aspects of immigration court cases may be delegated. We cannot say asylum law is simple, but when compared to the full range of immigration and other law issues IJs must be able to resolve daily, the part must be simpler than the whole, meaning that impartial attorneys can be recruited and trained to conduct asylum hearings and hand up conclusions of fact and law for the IJ to incorporate into the ultimate decision.

Better still, there is no reason to stop at asylum claims. The IJ, who retains the ultimate decision making authority, could delegate any specific issue, especially a frequently occurring and time consuming issue, for example, marriage bona fides, to a subordinate judicial officer.

This tweak to the immigration court system could be accomplished by executive order or administrative rule making. However, with the objective of further increasing efficiency, why not expand the jurisdiction of EOIR by allowing magistrates, under IJ supervision, to adjudicate USCIS petitions and applications, especially immediate relative I130 petitions, for whom visa

numbers are currently available, so that the IJ may rule on adjustment of status applications without being at the mercy of other agencies like USCIS. This jurisdictional increase is especially vital now that judge’s ability to administratively close cases has been curtailed.

There is little original to the idea of delegating specific areas of repetitious decision making under supervision. United States District Court and state court judges employ magistrate judges and special masters; physicians employ physician assistants and nurse practitioners; architects employ drafters and designers. The idea isn’t original, but the effects of the idea will enable more prompt and more fair decision making.

Under current rules, once an NTA, the charging document for Immigration Court, is issued by ICE, USCIS or other Homeland agencies, the respondent is in a Catch 22. Leaving is self deportation resulting in a five year reentry bar, but staying can easily result in a ten year unauthorized stay bar to readmission. We need an efficient Immigration Court system able to provide timely due process.

About The Author

Steve Krupis an attorney at Law at Hollywood, FL

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.