** LEGAL UPDATE **
The Trump administration and Attorney General Jeff Sessions have quietly instituted a quota system aimed at moving cases through the immigration courts more quickly, spurring concerns that people with pending cases may not have the opportunity for a full and fair hearing on the merits of their case. This, along with other sweeping changes to the immigration courts, has raised an outcry from advocates, and left many immigrants worried about their chances for success in an already complicated court.
The Attorney General has long been concerned with the slow pace of the Immigration Courts, known as the Executive Office of Immigration Review (“EOIR”). There are currently 334 immigration judges in 58 immigration courts, and their dockets are often so full that hearings are scheduled months and even years into the future. In an effort to supposedly alleviate the backlog, the Attorney General has ordered that each immigration judge complete 700 cases each year. That averages out to about three cases per day.
The quota system takes effect on October 1, 2018, at the start of the new fiscal year. The system will rank judges’ job performance based on “how quickly they close cases.” A judge who concludes between 560 and 700 cases "needs improvement," and those who complete less than 560 cases receive an "unsatisfactory" score. These performance reviews are linked to raises and job security for the immigration judges. The quickest way for a judge to close a case is to order deportation.
Unlike most judges, immigration judges are not independent members of the judiciary. Instead, they fall under the control of the U.S. Department of Justice (“DOJ”). This gives the Attorney General, who is the head of the DOJ, significant control over their actions. Many organizations, including the American Bar Association, have called for an independent immigration judiciary, in order to maintain the integrity of the court system.
Many advocates fear that the immigration judges will rush cases and potentially cut corners, to the detriment of respondents (the immigrant defendants), in order to meet their quota numbers. They worry that such a system, which ties iob security and raises for immigration judges to the number of cases they close, will create a conflict of interest for the immigration judges, creating an emphasis on the quantity of decisions issued rather than the quality of legal analysis.
With immigration judges forced to rush cases, those in removal proceedings may have less time to find an immigration attorney. “We’re going to see vulnerable populations, such as asylum seekers, being rushed through the system without the opportunity to obtain an immigration attorney, without an opportunity to present evidence, to present their claim in a manner that’s appropriate with due process,” stated Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. “We’re concerned that due process protections will not be afforded to these individuals due to the rushed process,” Lynch said.
On April 18, 2018, a group of retired immigration judges and former members of the Board of Immigration Appeals (“B.I.A.”) criticized the quota system, stating that “An immigration judge should be evaluated based on the quality of her decisions, not the quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors.”
The quota system is only one element of the Attorney General’s plan to increase the number of deportations. In the wake of Sessions’ decision in Matter of Castro-Tum, immigration judges have also lost the option to administratively close, or remove from the active docket, pending cases, even when relief is available. This means that respondents in immigration court may not be able to get relief, even if they have applications awaiting decisions by U.S. Citizenship and Immigration Services (“USCIS”) that would allow them to remain in the U.S. with legal status.
Sessions has also made it more difficult for immigration judges to continue cases to a future date. Because the Trump administration has sought to remove these tools from the docket management tools of immigration judges, even sympathetic judges may have no choice but to rush a case forward.The Justice Department has also faced allegations in recent months that it is denying appointments to new immigration judge who are perceived to be too pro-immigrant. If true, this politically-motivated hiring would be a violation of federal law. In an April 17, 2018 letterto Jeff Sessions, several Congressional Democrats raised concerns about hiring practices for immigration judges. The Justice Department has denied such allegations.
If you find yourself in immigration court, be prepared for an emphasis on speed in your case, rather than due process.
One of the most important factors in determining whether you will succeed is whether you are represented by an attorney. According to a 2016 study commissioned by the American Immigration Counsel, having an attorney drastically improved one’s chance for success: for detained immigrants, 44% with counsel obtained relief versus 11% without, and for non-detained immigrants, 63% were successful with counsel versus 13% without counsel. However, immigrants in immigration court do not have the right to government-appointed counsel. Even if you cannot afford a private attorney, many nonprofits offer legal services at reduced or no cost.
If you are in immigration court proceedings after October 1, 2018, pay special attention to preserving your rights for appeal. Present a full and complete record of events at your individual hearing, and do not be afraid to challenge the government attorney. Take notes during your hearing and write down anything that you perceive to be improper or unfair. Most importantly, never waive (give up) your right to appeal.
If you believe that you were denied due process due to a rushed decision by an immigration judge, you can appeal the decision to the B.I.A., the administrative appellate body for immigration court decisions. If your appeal is unsuccessful, you may even appeal to the Circuit Court in your jurisdiction. The appeals process is difficult and even more complex than immigration court proceedings, however. Even if you did not have an attorney in your immigration court hearing, finding legal counsel for your appeal will give you the best possible chance.
While the new quota system and other changes to the immigration courts have made an already uphill battle even more difficult, there is still hope. Appealing to a higher authority may be the best chance for immigrants to receive justice and hold the courts accountable.
Effective Date: October 1, 2018