Senate Panel Probes How to Address Immigration Court Backlog

WASHINGTON (CN) – A backlog of more than 684,000 cases are waiting to be heard by immigration courts across the United States, and the number is only expected to grow as the Trump administration clamps down on illegal immigration, judges and other experts told the Senate Judiciary Committee on Wednesday.

According to the Justice Department, the average wait for an immigration case to be processed is now more than 700 days.

With roughly 375 immigration judges able to complete an average of 678 cases per year, even without a single addition, the backlog would retain its capacity for a over two years.

Pressure on the judges grew in early April, when Attorney General Jeff Sessions issued a directive stating that beginning October 1, immigration judges will have to undergo performance evaluations that will, in part, look at how quickly they close cases.

According to James McHenry III, director of the Executive Office for Immigration, a judge will be expected to complete at least 700 cases per year in order to receive a “satisfactory” rating in the review.

In addition, a judge will be expected to have no more than 15 percent of his rulings in single calendar year remanded by a higher court.

But Judge Ashley Tabaddor, who heads the National Association for Immigration Judges, said the metrics judges would be required to meet to get a satisfactory performance review would make the backlog worse, not better.

She went on to say that pressuring judges by requiring them to meet a quota will infringe on judicial discretion.

“The havoc this decision will wreak cannot be understated or underestimated,” Judge Tabaddor told senators.

Hilarie Bass, president of the American Bar Association, said the planned performance review would also pressure judges to render oral decisions rather than write them.

In a 2003 study, ABA determined that oral opinions often lead to appellate judges sustaining removal orders without review of the case merits.

“Or worse, because immigration judges feel pressured to rush decisions to meet their deadlines and case quotas, quality may suffer,” she said.

During Wednesday’s hearing concern over the Justice Department’s decision to suspend the legal orientation program also came under scrutiny.

The program relies on non-profit organizations, to provide informational services to immigrants facing the court. Immigrant advocates said that when armed with concrete information, many undocumented aliens decide to self-deport, rather than have their cases go through the legal system.

A 2012 Justice Department study found the program saved the federal government $18 million a year, and only cost roughly $8 million to run.

The report also said that as a result of the program, cases were completed faster, fewer court hearings were required and detainees spent less time in detention.

“But you shut it down. Why?” Sen. Dick Durbin, D-Ill., asked McHenry.

McHenry responded by telling Durbin the program was not “shut down or terminated,” but rather, was under review for efficiency.

The results of that review are expected to be received by the director’s office on April 30.

“We are reviewing the study, which we believe was conducted under unorthodox circumstances,” McHenry said.

He didn’t elaborate on what he meant by “unorthodox.”

One solution that could address the backlog and ensure due process for detained immigrants would be the creation of an Article I court, according to

Rebecca Gambler, director of homeland security and justice at the Government Accountability Office, said one way to address the current case backlog would be to create a new Article 1 court.

In June 2017, the GAO compiled a report suggesting three possible models for such a court.

The first would be to establish a court completely outside the executive branch; the second would be creating an independent administrative agency within the executive branch that carries out some judicial functions with trial immigration judges plus the appellate review board.

A final option could be to create a hybrid of the first two proposals.

That model could be similar to the structure of the U.S. Tax Court, Gambler said.

The ABA’s Bass said while she’s officially “agnostic” about how the immigration court system might be reformed, she definitely “wants it out” of the Justice Department.

“An Article I model will be viewed as more independent than an agency because it would be a true judicial body,” Bass said. “It will produce the highest level of confidence in results, will attract the best candidates for judgeships and offer a balance between independence and accountability to the political branches of the federal government.”

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