On September 24, 2021, Attorney General Merrick Garland announced that David Neal would take over as Director of the Executive Office for Immigration Review ("EOIR"), the organization that oversees our nation's Immigration Courts and the Board of Immigration Appeals ("BIA").

Director Neal was Chairman of the BIA, from 2009 to 2019, when he was apparently forced out by the Trump Administration. Mr. Neal also served as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge ("IJ"), and Assistant to the Director. Indeed, he comes to the Directorship with probably more and diverse EOIR experience than any prior director. To top it off, he has a Master of Divinity from Harvard University (and of course a JD, but those are a dime a dozen).

The new Director will certainly need to draw on his past experience--and possibly seek divine intervention--as the agency he is now helming is a real mess. Currently, there are more than 1.4 million cases in the Immigration Court backlog. I have not found recent data on the BIA backlog, but in April 2020, it stood at 70,183 cases. To address the court backlog, EOIR is staffing up--from 535 judges to a projected 734 by the end of the current fiscal year (September 30, 2022). We are also seeing an increase in online and training resources for respondents (noncitizens in immigration proceedings) and practitioners.

Even during his short tenure, Director Neal has begun to take some positive steps. Aside from the new resources, EOIR has ended case completion quotas for Immigration Judge and also signaled a willingness to work with the National Association of Immigration Judges (the judges' union), which the prior Administration had tried to de-certify.

These are encouraging signs, and hopefully we will also start to see improvements related more directly to respondents' cases in Immigration Court and the BIA. Luckily for David Neal, I am here to offer my own suggestions (and who doesn't love unsolicited advice?). These are my ten great ideas for EOIR--

Stop Advancing Court Cases Without Proper Notice: In the last six months or so, courts have been randomly plucking cases from the backlog and scheduling them for Individual Hearings on very short notice. Sometimes, we learn about a hearing date only after the 30-day deadline for submitting evidence has passed. This is obviously incompatible with due process of law for the selected case, but it also makes it much more difficult for attorneys with busy schedules (i.e., all attorneys) to manage their case loads. Cases should simply not be scheduled in this manner. Can you imagine a criminal court calling a defense attorney, "Surprise! Your case is in four weeks. And, by the way, your evidence was due two days ago." Please stop this. And if a court case needs to be rescheduled, have the clerk call us to make sure we can accommodate the new date.

Last Minute Cancelations: The opposite problem to #1 is the issue of cases being cancelled days before the Individual Hearing. This means that the respondent is getting ready for trial, and that we lawyers have already prepared and submitted evidence and started prepping the respondent and her witnesses. Suddenly, the case is postponed, often with no new date in sight. This can be extremely traumatic for respondents, who have often been anticipating the date for months or years. It is also significantly extra work for lawyers, as long delays cause evidence to become stale, and we have to re-prep witnesses. Some of these cancellations are related to Covid, but at this point, we have been living with the pandemic for a year and half. It's time courts got their act together on scheduling.

Court Filing Deadline: The deadline to file evidence in court was 10 days before trial, then it changed to 15, and fairly recently, to 30. Given that IJs and DHS attorneys rarely look at the evidence until days (or seconds) before the Individual Hearing, and given how often court cases get delayed at the last minute, this deadline should be re-visited. Ten or 15 days was plenty of time for judges and DHS to do whatever they needed to do, and a return to that deadline would be more appropriate, at least until there is more certainty that court cases will go forward.

BIA Briefing Schedule: Speaking of deadlines, the BIA deadline for briefs is ridiculous. We file the appeal, wait for months and months, and then: Bam! The transcript arrives and the brief is due in 21 days (we can request an additional 21 days, which is usually--but not always--approved). Then we wait again for months and months for a decision. Considering how long this process takes and that almost all the delay is related to the Board itself, why is there such a rush to get the brief done? Why not change the deadline to 60 days, so lawyers have time to prepare a decent brief?

The Asylum Clock: Ugh. What can be said about the Clock that has not already been said, including by me. The system is arbitrary and the rules are applied inconsistently. It is also very difficult and slow to get an improperly-stopped Clock re-started. When respondents do not get their work permits, it makes their lives very difficult. The system should be fixed and the presumption should be that the Clock runs unless there is some truly egregious delay. Also, while we're on this topic, why can't the Clock status be added to the various online portals, so respondents can see whether and when they will be eligible to file for a work permit.

Consistency and Transparency: Some IJs hold online Master Calendar Hearings; others, in person. Still others require written motions. Which IJ requires which approach? I have no idea, and the only way to know is to talk to other lawyers to see what a particular IJ prefers. This makes it very difficult to know how to approach MCHs, and wastes time. Why not either standardize the process for MCH (preferably allowing represented noncitizens to do everything in writing or via Webex) or at least publicize each IJ's preference, so we know how to proceed.

Timely Rulings on Motions: It is common to submit motions to the Court and then wait for months, or forever, for a ruling. Calls to the court often go unanswered, or at least do not result in any action. This is problematic, since (1) motions often directly affect the lives of respondents; and (2) motions usually determine how a case will be litigated, and without a ruling, we do not know how to proceed. To be fair, some IJs are good about ruling on motions, but many are not, and this needs to be corrected.

Online Portal: It would be fair to say that the online system is still a work in progress. Some cases allow for online filings--or require it; others do not. The system needs to be extended to cover all cases. Also--dare to dream--can EOIR coordinate with DHS so that when a document is filed with the Court, it is automatically served on opposing counsel?

Widely Varying Asylum Approval Rates: For many years, critics of EOIR have pointed to the wide range of grant rates among IJs. Recent data shows that denial rates for asylum range from 3.3% to 100%, depending on the judge. Some of these discrepancies can be explained by the different populations of noncitizens that appear before each judge (different home countries, detained vs. non-detained), but even accounting for these differences, there is a random element to asylum decisions that seems unfair and arbitrary. Various solutions have been proposed--more training, more guidance from the BIA, Article I Courts--and all these ideas have merit. EOIR certainly should examine this issue and try to reduce the random elements that determine whether a case is approved.

Answer the Phones and Return Calls: You can't have due process if you can't communicate with Court staff, and so it would be nice if reaching a clerk was a bit less impossible.

So these are my ten great ideas for Director Neal. You're welcome!

Originally posted on the Asylumist: www.Asylumist.com