There are currently over 1.2 million cases pending before our nation's Immigration Courts (how many of these cases involve asylum, we do not know). The average wait time for a case is 849 days. What has caused this large backlog, and what can be done to alleviate the long waits in Immigration Court?

There are a number of reasons for the Immigration Court backlog. As with the Asylum Office, the basic reason is that there are too many cases and not enough Immigration Judges ("IJs") and support staff. But a significant aggravating factor is what Judge Schmidt calls "aimless docket reshuffling" or ADR, which he defines as "arbitrarily or maliciously moving cases around without actually deciding them." In other words, different Administrations have different priorities, and when Administrations change (or change their priorities), cases get moved around in ways that do not result in their completion, but do result in significant delay. The Obama Administration was responsible for its share of ADR, but the Trump Administration--with its decision to make every case a priority--has turned ADR into high art. Other aggravating factors include increased resources for enforcement without a commensurate increase for the Immigration Courts and a significant influx of asylum seekers from Central America that began in about 2012. One last factor is EOIR leadership (EOIR is the Executive Office for Immigration Review - the agency that oversees the Immigration Courts), which under the Trump Administration has been composed of partisan loyalists who lack the competencies needed to run a large organization.

So what can be done? Below are a few suggestions for improving the situation in our nation's Immigration Courts. Some would require Congressional action; others would not:

Article I Courts: The National Association of Immigration Judges and other advocacy groups have long supported the idea of making Immigration Courts into "Article I" courts. Article I refers to the U.S. Constitution, which gives Congress the power to create an independent court. Currently, Immigration Courts are part of the Department of Justice, which is subservient to the Attorney General and ultimately, the President. An Article I court would operate independently from the Executive Branch and would thus be less subject to political influence.

I must admit that I have been largely ambivalent about the Article I idea, since immigration and international relations are so inherently political. However, after four years of the Trump Administration's unprecedented politicization of the system, it is becoming increasingly clear that subjecting the Immigration Courts to the vagaries of our political process has contributed to the mess at EOIR. A more independent system would reduce aimless docket reshuffling and increase efficiency. IJs could better control their dockets, and there would be more certainty for litigants.

Prosecutorial Discretion: Given limited resources, we should be selective about who we try to deport. Criminals should receive priority over law-abiding non-citizens. Previously, with the consent of DHS (the prosecutor), IJs had the authority to "administratively close" cases that were low priority. That way, they could focus on more urgent matters. The Trump Administration eliminated this prosecutorial discretion and made everyone a priority for removal. And if everyone is a priority, no one is a priority. It makes sense to use resources wisely and to set aside low-priority cases, and so I hope that the Biden Administration will restore prosecutorial discretion to help ease the burden on Immigration Judges and DHS.

Premium Processing: Certain applications before USCIS allow for premium processing. The applicant pays money to receive a faster decision (though not necessarily a better decision). Maybe EOIR could create some type of premium processing so that respondents in court can pay additional money to speed up their case. The people who pay this fee would benefit the most, but the infusion of money into the system should benefit everyone.

Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various DHS offices would allow those attorneys to review applications for relief in advance and--where appropriate--agree to relief. Even if only a small percentage of cases were removed from the mix, it would help free up space on the court's docket. If this idea were combined with premium processing, a respondent could pay a fee to have DHS review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the applicant to explore whether relief is appropriate, and if so, it could inform the IJ, who would then grant the relief without a hearing.

Pre-Master Calendar Hearings: Master Calendar Hearings (“MCHs”) are a huge waste of time for judges, DHS, applicants, and lawyers. Why not require any alien who enters the system to attend a pre-MCH with a member of the court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the staff member could be fluent in that language (or have an interpreter). At the pre-MCH, the non-citizens would watch a video--in their own language--explaining the system and their rights (basically what the IJ repeats to pro se respondents 31 times each MCH). The staff member could answer basic questions and encourage the pro se respondents to find lawyers (basically what the IJ does 31 times each MCH). Respondents who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Those who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance. If the deadline passes, the respondent will need to attend an in-person MCH.

e-Filing and e-Master Calendar Hearings: Federal courts across the United States require electronic filing, and Immigration Courts have been trying to implement a similar system for almost two decades. Once an attorney enters his appearance, he should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). He should also be able to indicate the relief sought and submit applications. If there is some reason that the lawyer needs to see the IJ, he can request to appear at a MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. An easy-to-use, workable electronic system would avoid MCHs and save significant time and money for the courts, DHS, and respondents.

Impose Costs: One final idea for infusing money into the system would be to impose costs. I am not a big fan of this idea, but it might be worth exploring. Criminal and civil courts routinely impose costs and fines, so maybe Immigration Courts should too. There generally is only one reason that a person would have a case before an Immigration Judge--he violated the immigration law. Maybe the violation wasn’t his fault (in the case of a referred asylum seeker, for example), and so a fine may not be warranted, but the IJ can make that determination. The Immigration Court system is expensive, and there is an argument that people who are in the system because they violated the law should help pay for it. If this idea were implemented, one way to ease the burden would be to spread out the cost over time, and make that a condition for maintaining status.

There is a lot of work to be done to start addressing the mess that is the Immigration Court system. Hopefully, EOIR can implement creative and compassionate policies to increase due process and decrease the backlog.

Originally posted on the Asylumist: