It is no secret that the immigration courts, run by the Executive Office for Immigration Review (EOIR), are seriously overworked and backlogged. The American Immigration Lawyers Association (AILA) recently obtained a copy of the EOIR’s Strategic Caseload Reduction Plan for dealing with this backlog, but the data makes it clear that EOIR’s strategic plan was a colossal failure and has been completely undermined by the Department of Justice, the federal agency under whose jurisdiction the EOIR sits. While EOIR’s plan was to significantly reduce the case backlog by 2020, the case backlog has actually increased by 25% since the plans approval in October 2017. As of the end of 2018, there are over 800,000 cases in the EOIR backlog.
To immigration attorneys familiar with the EOIR, the changes dictated by the DOJ and former Attorney General Jeff Sessions would no doubt lead to increase in the backlog and the undermining of due process rights for individuals in the EOIR system. Both have come to pass.
AG Sessions referred several Board of Immigration Appeals cases to himself, which allowed him to rewrite what had been long-standing precedent dealing with procedural mechanisms for disposing of cases before the EOIR. In short, he deprived immigration judges of the ability to administratively close cases and limited their ability to continue cases to a later date. Administrative closure is generally used to put cases to the side while individuals seek other relief outside of the immigration courts that would render their EOIR case moot and allow it to be dismissed. By removing this tool, and actively re-activating cases that had already been administratively closed, the DOJ added a large number of cases back into the system and effectively made the EOIR proceed with cases that would have been resolved on their own without further EOIR involvement.
Further, continuances are a useful tool to push hearing dates into the future, which is often necessary for an individual before the EOIR to find legal representation or to allow an attorney sufficient time to prepare for a case. With continuances now restricted, it is much more likely that an individual will be forced to proceed before the EOIR without representation, which significantly undermines due process and increases the likelihood of an adverse decision.
Even more concerning has been the streamlining of hiring for immigration judges, which is troublesome when coupled with reports of judges being selected or forced out based on political ideology rather than merit.
Regardless of your political beliefs, Americans profess adherence to the principle of due process for all, and what is occurring at the EOIR as a result of administrative meddling for political reasons, undoubtedly undercuts that principle.