The Sinking Immigration Court

• Jurisdiction: United States,Federal
• Publication year: 2022
• Citation: Vol. 4 No. 1

The Sinking Immigration Court

Change Course, Save the Ship

Stacy Caplow ^*

Abstract: If there is one area of agreement in the many debates about the state of our immigration system, it is that the immigration court is in crisis. Years of appeals for reform have gone unheeded while backlogs continue to increase dramatically, eliminating any illusion of efficiency and fundamental fairness. The past administration's management policies exacerbated the problems. While the Biden administration is well aware of this situation and has begun to roll back some of the worst damage caused by its predecessor, much work remains to be done. This article offers some short-term proposals for ground-level reforms to some of the practices in the courts that would bring immigration adjudication into greater conformity with other litigation settings and might restore greater confidence in the courts as a place where expeditious, fair, and humane proceedings take place.

Introduction

Immigration court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump administration, have created a full-fledged crisis. The court's critics call for radical reforms. ¹ That is unlikely to happen. ² Instead, the Biden administration has taken several much-needed steps to reverse many of the misguided policies that led to inefficiencies and inequities. In addition, the President has returned to the go-to, cure-all solution: adding immigration court judges and support personnel ³ to help address the backlog, which now exceeds 1.5 million cases. ⁴

No one could oppose additional resources, although a large infusion of immigration judges and the opening of new courtrooms between 2017 and 2020 did little to halt the ever-growing number of pending court cases, which increased by more than 500,000 over that time period, ⁵ or the waiting times, which now average 905 days. ⁶

Additional resources, though critical, are not enough. I propose a series of practical case management reforms that could expedite and professionalize the practice in immigration court. Linked with a more transparent and more inclusive process for selecting immigration judges, these changes would make the immigration courts more efficient, more accurate, and fairer, but not at

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the expense of the compelling humanitarian stakes in the daily work of the court. While these reforms do not require legislation, they do require the will to transform the practice and culture of the court. They would be a major step forward in improving the experiences, the professionalism, and the outcomes in immigration court.

Changes to the Practices and the Culture of the Immigration Court

Immigration hearings are adversarial. While the stakes are very high and often punitive—removal, ongoing detention, family separation—the proceedings are considered civil matters. Yet little attention has been paid to their deviations from standard civil procedures. Immigration court bears little resemblance to typical civil litigation settings in both the pretrial and trial context. Most of the characteristic judicial tools regulating litigation are absent: pretrial discovery, pretrial settlement or status conferences to resolve or narrow issues, or enforcement tools that require government lawyers to participate in a meaningful way long before the merits hearing. Evidentiary stipulations are rare or occur only at the last minute, when they are unhelpful.

Generally, the prosecutors in immigration court, the Office of the Principal Legal Advisor (OPLA), a division of U.S. Immigration and Customs Enforcement (ICE), assign no trial attorney (TA) to a case until a few weeks prior to an individual hearing. ⁷ If a case is pending for several years, as so many are these days, it is impossible to have any kind of substantive discussion in advance to narrow issues or to talk over the conduct of the hearing, possible forms of settlement, or alternative relief. Years pass while proceedings stagnate, and individuals are in limbo. Delays can result in huge costs: the governing law might change, ⁸ personal circumstances might evolve, memories may fade, witnesses may become unavailable, evidentiary submissions might require updating, files might be misplaced.

The immigration court should adopt practices familiar in civil and criminal tribunals around the country. The court should not be reluctant to implement these strategies due to high TA caseloads. Indeed, better case management might reduce caseloads while also benefitting respondents. Accordingly, the immigration court should adopt the following common litigation supervision tools in order to expedite and rationalize proceedings.

Assign Trial Attorneys to Cases Promptly

A TA should be assigned to review a case at the earliest possible time following the initial master calendar appearance, where pleadings are entered. At a minimum, a TA should be assigned at the request of any respondent who wants to discuss a case, regardless of when the individual hearing is

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scheduled. To foster meaningful discussions, TA conferences should occur at the latest as soon as the respondent has completed evidentiary filings. In the many affirmative asylum cases referred to court, there would be an extensive evidentiary record at the first master calendar appearance. Although the government lawyers in immigration court are busy, like prosecutors in any busy court in the nation, they can handle a large caseload without waiting until the last minute to review the claim.

The positive impact of a prompt TA assignment system will benefit everyone—respondents, TAs, and immigration judges (IJs). For example, although many cases require a credibility finding based on in-person testimony, some claims simply do not. If there is no basis for doubting credibility after considering the evidence, and the law is clear, a one-, two-, or three-year wait for a decision is unconscionable. Under the current system, the TA does not review the submissions until shortly before the merits hearing. Accordingly, when the TA finds a file in which credibility is not an issue, often the TA does not seriously contest the facts or the eligibility for relief. This results in half-hearted cross-examination, if any at all, and a quick grant of relief without opposition. Unfortunately, this relief occurs only after years of delay and anxiety, plus extensive unnecessary preparation that often involves logistical headaches and inconveniences to witnesses. Earlier, thorough case assessment could avoid the stress to respondents whose lives are on hold, could result in fewer or more focused hearings, and could accomplish the timeliness and efficiency goals of the Executive Office for Immigration Review (EOIR).

Require Prehearing Conferences

The EOIR Practice Manual provides for a prehearing conference. ⁹ This tool, commonplace in other kinds of courts, is rarely used. Neither IJs nor TAs routinely invite or encourage prehearing conferences. Following the lead of many civil and criminal courts, there should be a regularly scheduled in-court status conference in every case upon a simple request from either party, or on the IJ's initiative, conducted as expeditiously as possible after the pleadings at the master calendar hearing. In the alternative, if the attorneys have conferred, they could report the outcome of their discussions to the IJ, who could then take this into account when scheduling an individual hearing. This could achieve great efficiencies and fairer outcomes.

A mandatory prehearing conference, therefore, would necessitate assigning a specific TA to a case well in advance of the hearing. For a meaningful conference, a respondent's lawyer would generally need to submit evidence and even a memorandum of law. A process similar to a summary judgment motion might result. If the TA concedes that there are no factual disputes or lack of credibility, the judge could decide the legal basis for relief. This procedure might result in an abbreviated evidentiary hearing, might require only an oral argument, or even could be decided on written submissions.

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A few prototypical cases illustrate how this might work. Imagine an asylum seeker who has suffered or who has a well-founded fear of persecution on account of sexual orientation and who comes from a country whose homophobic laws and oppression of LGBTQ people are undisputed. If the asylum seeker is credible, well-settled law would surely warrant a grant of asylum. Or suppose a woman who was subjected to genital circumcision has medical records confirming this condition. Again, under well-settled law she is likely to be granted asylum. Or a one-year filing deadline bar could be resolved without the need for testimony based on written submissions. These issues could be resolved at a prehearing conference. Another set of cases might involve requests for cancellation of removal. The prehearing conference could conclude that objective evidence satisfies most of the statutory factors. This could narrow the case so that the IJ would only hear evidence relevant to the hardship determination. If the TA reviewed the evidence and conceded that the hardship standard had been satisfied, this could eliminate the need for a hearing altogether.

Immigrants and their advocates shoulder the burden of multiyear delays and suffer from the resulting uncertainty and angst. Meanwhile, they build lives despite their unpredictable future, increasing the harsh impact of eventual deportation. During the interval, immigration advocates' caseloads multiply. Years later, when a hearing is finally held, the consequences of delay are substantial. Court submissions need to be updated. Legal claims may be affected by...