CMS Dialogue: The US Immigration Court System: Workload and Due Process Challenges

On February 16, 2012, the Center for Migration Studies (CMS) sponsored a dialogue with Juan Osuna, the director of the Executive Office for Immigration Review (EOIR), which oversees the US immigration court system.  The event took place at the law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP.  It presented an opportunity to discuss immigration court backlogs, the effect of prosecutorial discretion policies on the immigration courts, due process issues, and related policy ideas.  Parisa Paraahmet, a partner at Fragomen and Professor Lenni Benson of New York Law School served as respondents to Mr. Osuna.  Professor Benson has co-authored an extensive report by the Administrative Conference of the United States (ACUS) on improving the procedures for adjudication of removal cases.  Donald Kerwin, CMS’s Executive Director, moderated the session.

A 2010 report on the removal adjudication system by the American Bar Association (ABA) found that Immigration Judges (IJs) completed an average of 1,243 proceedings per year.  The Transactional Records Access Clearinghouse (TRAC) at Syracuse University recently reported that as of December 31, 2011, the immigration court system labored under 300,225 removal cases, with cases pending an average of 507 days. Under the Office of Management and Budget’s high priority performance goal process, the Attorney General requires IJs to adjudicate 85 percent of detained cases within 60 days, a rate that EOIR has exceeded in recent years.  While appropriate, this means that delays are far longer in non-detained cases, including in many asylum cases.  In addition, the US Department of Justice (DOJ) is experiencing severe budget challenges that will limit the number of IJs to roughly 260 for the foreseeable future.

In the circumstances, IJs will be attempting to work down pending cases, while accommodating a heavy volume of new cases generated by increased enforcement activities by the Department of Homeland Security’s (DHS’s) two immigration enforcement agencies, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).  DHS’s US Citizenship and Immigration Services (USCIS) agency, which administers immigration benefit programs, also issues large numbers of Notices to Appear (NTAs) for removal proceedings.

In February 2012, TRAC reported that during the first three months of FY 2012, 65 percent of the cases disposed of by IJs ended with removal or voluntary departure orders, the lowest level in two decades.  The percentage of actual removal orders fell from 56.1 percent the previous quarter, to less than 51 percent.  The percentage of cases with relief granted rose from 13 to 17 percent over the same period.

Mr. Osuna provided a short presentation on the court system, which he said operates as something of a dual system involving the detained and non-detained dockets.  He reported that 44 percent of Immigration Court cases involved detainees.  The Board of Immigration Appeals (BIA) has 25,000 pending cases, but the rate of appeals of IJ decisions is relatively low, 9 percent.  Immigration cases are responsible for two of the most significant trends in the federal court system, a significant decrease in the workload of Courts of Appeals due to fewer appeals from the BIA, and a wholesale increase in recent years in immigration-related prosecutions in federal district courts.

Mr. Osuna reported that the federal Legal Orientation Program (LOP) operates in 27 locations and reaches 50 percent of persons in removal proceedings.  However, legal representation rates for detainees are roughly 15 percent.  Overall, fewer than one-half of persons in removal proceedings enjoy legal counsel.

EOIR has been aggressively reporting unauthorized legal practitioners to the Consumer Trade Commission.  It is also in the process of updating the regulations that govern BIA-recognized agencies and accredited non-attorney practitioners.

In December 2011 and January 2012, ICE operated pilot programs in Denver and Baltimore to screen incoming and pending removal cases based on prosecutorial discretion guidelines.  The review process may ultimately relieve some of the workload burdens on the Immigration Court system. Mr. Osuna reported that it would take time to gather exact statistics on the pilot programs since a tentative decision by ICE to exercise discretion results in intensive background checks, followed by a motion to administratively close the case, and an IJ decision on the motion.  One area of concern will be cases when trial attorneys wish to close cases, but persons in removal proceedings oppose closure because of pending claims for relief. An event participant made the point that this situation highlighted the need for a standard advisory on the effect of closure for persons in removal proceedings, particularly for those without counsel.

DHS is the law enforcement agency that exercises prosecutorial discretion in immigration cases, but IJs may participate in the process by raising the issue of whether ICE trial attorneys wish to proceed in individual removal cases and by considering motions to administratively close cases.  Persons who receive a positive exercise of discretion do not obtain legal status in the United States.

Professor Benson raised a series of proposals made in the draft ACUS report to allow USCIS asylum officers (AOs), which handle “affirmative” asylum cases to adjudicate asylum and related cases that are now handled through the Immigration Courts.  The ACUS report proposed that EOIR amend its regulations to provide that IJs administratively close asylum and withholding of removal cases (the latter is a form of protection corresponding to the international right to non-refoulement), so that AOs can consider them.  AOs now refer asylum-seekers with a “credible fear” of persecution that are subject to the expedited removal process, to IJs for adjudication of their underlying asylum claims in removal proceedings.  Both the ABA and ACUS reports support allowing AOs to grant asylum in such cases.

Ms. Paraahmet raised the issue of whether ICE trial attorneys and IJs should operate more like prosecutors and judges in criminal courts. She argued that trial attorneys should be able to decide when to proceed with a case and when to negotiate the equivalent a plea agreement.  This kind of system would significantly reduce Immigration Court burdens, and resolve many cases that do not need to be in the system at all.  However, as a participant pointed out, the proposal assumes well-prepared trial counsel and legal representation of the person in removal proceedings. Mr. Osuna highlighted the need for attorneys to narrow the issues in pre-trial conferences, thus making court proceedings more efficient.  A participant argued that IJs should encourage settlement of cases and should even be able to sanction government attorneys when they cannot agree upon a resolution to the case.  DHS/ICE opposes the latter recommendation because both IJs and ICE trial attorneys are government attorneys.

Mr. Osuna endorsed the expansion of video-conferencing in court proceedings, but said that it is worth exploring whether this could be accompanied by greater, confidential video access between attorneys and their clients.  The ABA and ACUS report differ on the use of video-conferencing in removal proceedings, particularly as relates to “merits” hearings.

The ABA and ACUS reports include dozens of recommendations for increasing the performance and efficiency of the Immigration Court system. If adopted, these recommendations, combined with the relatively modest number of cases likely to be administratively closed under prosecutorial discretion guidelines, will still not relieve the EOIR of its overwhelming workload.  Thus, the ABA report recommended that Congress appropriate funding to allow EOIR to hire 100 more IJs.  In the current budget crisis, this recommendation will not be adopted.  In any event, it would not obviate the need for broader reform of US immigration law.  The Immigration Court system – and the immigration enforcement system overall — will not be able to bear the burden (by itself) of an immigration system badly in need of underlying reform.