The immigration court backlog has been brewing for a long time. Currently, in some jurisdictions, immigrants must wait over four years for their hearing to be scheduled. There are currently around 2,000,000 pending cases in immigration courts throughout the country. 2 MILLION. Of the 2,000,000-some cases, just 309,031 cases were shown as administratively closed (at immigration courts and the Board of Immigration Appeals) as of the first quarter of 2022. These numbers are staggering.
As immigration courts continue to buckle under this backlog, the Executive Office for Immigration Review (EOIR) and the current administration have been implementing ways to address this growing problem. AILA, along with other experts in the field, offered up solutions, some of which seem to be in the mix. However, the implementation of these strategies has been haphazard and inconsistent, often creating more confusion for practitioners, clients, and pro se respondents.
One of the Biden Administration’s promises has been to reduce this backlog. The administration employed tactics, such as the asylum processing rule program, which fast-tracked certain types of asylum cases through the immigration system. Ultimately, this program was paused because it was unsustainable in conjunction with lifting Title 42. As recently as March 2023, the Biden Administration continues to maintain its commitment to reducing the backlog. With the Supreme Court’s most recent ruling affirming the executive branch’s authority in setting enforcement priorities, we must keep working to make courts more efficient.
As mentioned above, AILA and other experts put forward several possible solutions, which detail how the Department of Justice (DOJ) and EOIR can use their authority to remove large numbers of low priority enforcement cases and help clear up Immigration Judges’ dockets. We’ve seen EOIR introduce certain specialized dockets which group similar types of cases together. It also issued guidance on Pre-Hearing Conferences which enable both parties to narrow issues and streamline the case. However, practitioners find themselves needing to clarify with their local EOIR liaison chapters to understand which specialized dockets are in effect in their jurisdiction and whether Pre-Hearing Conferences are in practice.
This is where things become murky. Because specialized dockets vary from jurisdiction to jurisdiction, consistent information about the types of dockets, the names of these dockets, and understanding which courts have which dockets has been a frustrating puzzle. The situation is similar for Pre-Hearing Conferences. Recently, AILA shared a survey with our members about specialized dockets and Pre-Hearing Conferences to better understand what practitioners are seeing in their jurisdictions. Understanding the practices among various immigration courts is critical to assessing whether the strategies to fight the backlog are actually working.
Most experts and legal practitioners agree that the immigration court backlog is unsustainable and now, more than ever, we need to put real solutions into practice. By filling out the survey, we’ll be able to get a better handle on one piece of the puzzle. This work is important to assess where due process has been undermined, whether we are indeed creating sustainable policies, and how we can continue to protect vulnerable populations seeking protection.
I encourage all AILA members to fill out this survey, so we can better advocate with EOIR headquarters for practices that work well and be able to describe challenges that continue to hold us back.
