United States: New Developments In U.S. Immigration Court

In September 2019, The Wall Street Journal reported that the docket pending at U.S. Immigration Courts surpassed one million cases.¹ In response to this increasing backlog, the Executive Office for Immigration Review ("EOIR") implemented a number of rules, regulations, and policies aimed at maximizing efficiency within the U.S. immigration court system. Indeed, addressing the backlog of cases pending in immigration court has been a focal point of President Trump's administration.² While these policies are intended to streamline the U.S. immigration system, they also present new challenges to maintaining the independence of immigration judges and protecting due process rights for respondents. This post discusses several policy changes and updates within the EOIR, as well as potential consequences for judicial independence and due process rights.

Case Completion Quotas and Performance Evaluations for Immigration Judges

On March 30, 2018, the EOIR issued a memorandum outlining new performance evaluation metrics for immigration judges.³ The memorandum describes how immigration judges must now complete at least 700 cases per year, with less than a 15% remand rate from the Board of Immigration Appeals ("BIA") or Circuit Courts, in order to obtain a "satisfactory" performance rating.⁴

Both the American Bar Association and National Association of Immigration Judges have expressed concern about the threat that these new performance metrics present to immigration judges' independence and the due process rights of individuals in removal proceedings. Prior to the distribution of the 2018 memorandum, the President of the American Bar Association issued a statement, "strongly disagree[ing] with any attempt to establish mandatory case completion quotas for immigration judges."⁵ The statement notes that performance metrics "based solely on the number and speed of cases resolved" could threaten the independence of immigration judges.⁶ Undoubtedly, failure to meet case completion goals has significant personal consequences for immigration judges, as poor performance ratings could result in a judge losing his or her job.⁷ Citing these consequences, Judge Ashley Tabbador, President of the National Association of Immigration Judges, argued that the new metrics unfairly pit judges' personal interests against the due process considerations of those in removal proceedings.⁸

Restrictions on Granting Continuances: Matter of L-A-B-R-

8 C.F.R. § 1003.29 permits immigration judges to grant a motion for continuance for good cause shown.⁹ Prior to 2018, several circuit courts held that immigration judges generally have broad discretion to determine whether to grant a continuance.¹⁰ For instance, Matter of Hashmi established that judges can use a multi-factor test to determine whether a respondent has satisfied the good cause requirement for granting a continuance.¹¹ This discretion has historically been key to protecting immigrants' right to seek counsel, as it often provides individuals with adequate time to seek counsel before their case is adjudicated.¹² As Chief Immigration Judge Marybeth Keller stated in 2017, "the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all."¹³

In Matter of L-A-B-R-, issued in 2018, Attorney General Sessions greatly restricted immigration judges' broad discretion to grant motions for continuance.¹⁴ He focused specifically on the good cause requirement delineated in 8 C.F.R. § 1003.29, explaining that this standard prevents immigration judges from granting continuances "for any reason or no reason at all."¹⁵ Although he affirmed Hashmi's multifactor analysis for describing good cause,¹⁶ he noted two primary factors that immigration judges must emphasize: (1) the likelihood that the immigrant will be granted collateral relief, and (2) whether the grant of relief will materially affect the outcome of the removal proceedings.¹⁷ Secondary factors that judges may consider include:

(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. ¹⁸

The Attorney General justified tightening the good cause requirement by pointing to the public's interest in "expeditious enforcement of immigration laws," and the frequency of "unjustified continuances" that burden the legal system.¹⁹ In response, critics have again noted that this overemphasis on efficiency may very well increase the risk for due process violations.²⁰ Indeed, respondents who do not receive continuances may have to proceed with their case without legal representation.

The End of Administrative Closure: Matter of Castro-Tum

Prior to 2018, immigration judges frequently "administratively closed" cases to manage their dockets.²¹ The practice of administrative closure did not provide any form of permanent or temporary immigration status for individuals in removal proceedings—rather, it merely placed cases on an indefinite hold for those immigrants who demonstrated eligibility for other forms of immigration relief.²²

Attorney General Sessions terminated this longstanding practice in Matter of Castro-Tum, which held that immigration judges and the BIA have no general authority to suspend immigration proceedings indefinitely via administrative closure.²³ The Attorney General criticized the indefinite nature of administrative closure, noting that although it was intended as a temporary suspension, it was "effectively permanent in most instances. Unless a party 'move[s] to recalendar [an administratively closed case] . . . or to reinstate the appeal before the Board,' the case remains indefinitely suspended without a final resolution." ²⁴ Instead, the AG proposed that judges grant continuances when a brief pause from proceedings is warranted—despite his subsequent restriction on granting continuances in Matter of L-A-B-R.²⁵

Critically, the AG ordered the re-calendaring of any cases that had been administratively closed without requisite authority upon motion of either the Department of Homeland Security ("DHS") or the respondent.²⁶ This policy has the potential to reopen long-closed cases, particularly for individuals who are DACA recipients. As of October 2019, for example, individuals began reporting that they had received notices that their cases had been reopened by DHS—even if they had received deferred action or had no criminal history.²⁷

Decertification of the National Association of Immigration Judges

On August 13, 2019, the U.S. Department of Justice filed a petition with the Federal Labor Relations Authority to decertify the National Association of Immigration Judges ("NAIJ") as the bargaining unit for immigration judges across the United States.²⁸ The DOJ argued that immigration judges should be "precluded from forming or joining a labor organization" because they are "management officials" pursuant to 5 U.S.C. § 7103(a)(11).²⁹

Since 1979, the NAIJ has served as the recognized representative for collective barging for all IJs.³⁰ The NAIJ has since proven to be essential in maintaining immigration judges' independence, despite the fact that the EOIR is housed within the Department of Justice. Judge Ashley Tabaddor, stated in an interview with NPR:

[Immigration court is] a court system that is put in a law enforcement agency, and we are under the authority of the Department of Justice and accountable to the attorney general, who is our chief prosecutor. So he hires us, he reviews our work, and he can fire us.³¹

In this sense, the NAIJ stands for the democratic value of judicial independence within immigration courts by advocating for structural changes within the EOIR that would allow and support independence.³²

Critics of the DOJ's petition to terminate the NAIJ have argued that it is a clear attempt to reduce judicial independence within immigration courts.³³ Ben Johnson, Executive Director of the American Immigration Lawyers Association, pointed to the irony in the DOJ's portrayal of immigration judges as management officials who set agency policies, given that "this Administration has made every effort to limit the judges' independence, management, and authority–micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas."³⁴ Indeed, several of the policy changes described above—such as the imposition of case completion quotas— indicate a clear shift towards limiting immigration judges' discretionary, policy-making ability.

Conclusion

The Trump administration has introduced a number of new rules, regulations, and policies intended to maximize efficiency within the EOIR. Employers, legal counsel, and any individual in immigration court proceedings should be aware of these updates, due to their potentially adverse impact on the independence of immigration judges and respondents' due process rights as they navigate the legal system.

Footnotes

1 Michelle Hackman, U.S. Immigration Courts' Backlog Exceeds One Million Cases, The Wall Street Journal, Sept. 18, 2019, https://www.wsj.com/articles/u-s-immigration-courts-backlog-exceeds-one-million-cases-11568845885.

2 Remarks by President Trump on the Government Shut Down, The White House (Jan. 25, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-government-shutdown/ ("Our backlog in the immigration courts is now far greater than the 800,000 cases that you've been hearing about over the last couple of years. . . We do not have the necessary space or resources to detain, house, vet, screen, and safely process this tremendous influx of people."); Remarks by President Trump on the Humanitarian Crisis on our Southern Border and the Shutdown, The White House (Jan. 19, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-humanitarian-crisis-southern-border-shutdown/ ("Our plan includes the following. . . 75 new immigration judge teams to reduce the court backlog of, believe it or not, almost 900,000 cases."); President Donald J. Trump Calls on Congress to Secure our Borders and Protect the American People, The White House, (Jan. 8, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-calls-congress-secure-borders-protect-american-people/ ("Immigration courts are overwhelmed, with a backlog of over 800,000 cases.").

3 Memorandum from James McHenry, EOIR Dir., on Immigration Judge Performance Metrics to All Judges (Mar. 30, 2018) (on file with the American Immigration Lawyers Association).

4 Id. at 4.

5 Statement of ABA President Hilarie Bass Re: Mandatory case completion quotas for immigration judges, The American Bar Association (Oct. 16, 2017), https://www.americanbar.org/news/abanews/aba-news-archives/2017/10/statement_of_abapre1/

6 Id.

7 Noel King, Immigration Judges Face Challenges as Cases Pile Up, NPR, Jul 11, 2019, https://www.npr.org/2019/07/11/740608295/immigration-judges-face-challenges-as-cases-pile-up ("So the judge may lose his or her job, because, at the end of the rating period, the judge would have to then justify why those numbers have not been met.") (quoting Judge A. Ashley Tabaddor while discussing consequences for immigration judges not meeting their case completion quotas).

8 Hearing on Strengthening and Reforming America's Immigration Court System Before the Senate Judiciary Comm. On Border Security & Immigration Subcomm., 115th Cong. (Apr. 18, 2018) (Statement of Judge A. Ashley Tabaddor, President National Association of Immigration Judges), https://www.judiciary.senate.gov/imo/media/doc/04-18-18%20Tabaddor%20Testimony.pdf

9 8 C.F.R. § 1003.29.

10 Molina v. INS, 981 F.2d 14, 16 (1st Cir. 1992) (citing Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975); Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986)) ("Immigration judges have broad legal power to decide whether or not to grant continuances.").

11 Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (discussing the appropriate factors for consideration of a motion to continue).

12 David Hausman & Jayashri Srikantiah, Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, Fordham L. Rev. 1823, 1827 (Apr. 2016) ("The more time [individuals in removal proceedings] had between hearings, the more likely they were to find a lawyer. . . These combined obstacles—lack of resources and lack of information about removal proceedings—make time important for finding counsel.").

13 Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, Tulane L. Rev. 707, 747-48 (Apr. 2019) (citing Memorandum from MaryBeath Keller, Chief Immigration Judge, Exec. Office for Immigration Rev., to all Immigration Judges, Court Administrators, Attorney Advisors, Judicial Law Clerks, and Court Staff, Regarding Operating Policies and Procedures 3 (July 31, 2017), https://www.justice.gov/eoir/file/oppm17-01/download.)

14 Matter of L-A-B-R-, 27 I&N Dec, 405, 405 (A.G. 2018).

15 Id. at 406.

16 Id. at 413 (citing Hashmi, 24 I&N Dec. at 790).

17 Id. at 406 ("I hold that an immigration judge should assess whether good cause supports such a continuance by applying a multifactor analysis, which requires that the immigration judge's principal focus be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.")

18 Id. at 408 (quoting Hashmi, 24 I&N Dec. at 790).

19 Id. at 406.

20 Marouf, supra note 13, at 750 ("This focus on administrative efficiency in ruling on requests for continuances increases the risk of due process violations."); David Hausmen, How Jeff Sessions is Attacking Immigration Judges and Due Process Itself, ACLU (Oct. 1, 2018, 2:00 PM), https://www.justice.gov/eoir/file/oppm17-01/download (describing Matter of L-A-B-R as an example of an attack on due process.).

21 The End of Administrative Closure: Sessions Moves to Further Strip Immigration Judges of Independence, CLINIC (Apr. 4, 2018), https://cliniclegal.org/resources/removal-proceedings/end-administrative-closure-sessions-moves-further-strip-immigration; See also Brief of Amicus Curiae Catholic Legal Immigration Network, Inc. at 2, Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) ("Although administrative closure, a docket-controlling measure used by courts and administrative agencies, previously without much controversy, is not explicitly mentioned in immigration statute, it is a well-authorized tool for the administration of justice.")

22 Id.

23 Matter of Castro-Tum, 27 I&N Dec. at 271.

24 Id. at 272-73 (citing Matter of Avetusyan, 25 I&N Dec. 688, 692 (BIA 2012)).

25 Id. at 271 ("For cases that truly warrant a brief pause, the regulations expressly provide for continuances. 8 C.F.R. § 1003.29.").

26 Id. at 293.

27 CNN Wire, ICE Reopining Long-Closed Deportation Cases Against DACA Recipients with Minor to No Record, KTLA 5 News, Dec. 21, 2019, https://ktla.com/2019/12/21/ice-reopening-long-closed-deportation-cases-against-daca-recipients-with-minor-to-no-record/; Maurice "Mo" Goldman, Immigration Lawyer: My DACA clients can't rely on Trump or Supreme Court. Where's Congress?, USA Today, Nov. 11, 2019, https://www.usatoday.com/story/opinion/2019/11/11/daca-supreme-court-congress-protect-immigrants-from-trump-column/2534149001/

28 U.S. Federal Labor Relations Authority Petition to clarify and determine that the bargaining unit of immigration judges (IJs) is inappropriate because IJS are management officials under to 5 USC 7103(a)(11).

29 Id.; See also 5 U.S.C. § 7103(a)(11) (defining "management official" as "an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.")

30 About the NAIJ, National Association of Immigration Judges, https://www.naij-usa.org/about

31 Justice Department Moves to Decertify Union that Represents U.S. Immigration Judges, All Things Considered, NPR, https://www.npr.org/2019/08/13/750897630/justice-department-moves-to-decertify-union-that-represents-u-s-immigration-judg

32 About the NAIJ, National Association of Immigration Judges, https://www.naij-usa.org/about

33 Richard Gonzales, Trump Administration Seeks Decertification of Immigration Judges' Union, NPR, Aug. 12, 2019, https://www.npr.org/2019/08/12/750656176/trump-administration-seeks-decertification-of-immigration-judges-union ( " 'This is nothing more than a desparate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation's 440 Immigration Judges. . . Without the union, judges would be effectively muzzled and unable to publicly share their views about the courts.'") (quoting Judge Ashley Tabbador).

34 AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independence, AILA (Aug. 15, 2019), https://www.aila.org/advo-media/press-releases/doj-seeks-termination-of-immigration-judges-union

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