Freedom of Information Act (FOIA) requests are often a sort of “hurry up and wait” not uncommon in our immigration system. Through a recent FOIA request, AILA and the American Immigration Council received a partially redacted plan approved and implemented by the Executive Office for Immigration Review (EOIR) called the Strategic Caseload Reduction Plan. EOIR’s plan — which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017 — was supposedly intended to “significantly reduce the case backlog by 2020.” However, in the wake of its implementation, the administration’s policies have severely undermined due process protections and contributed to an estimated 25% increase in the court backlog, from 655,932 on 9/31/17 to 821,726 on 12/31/18.
It’s no surprise that the backlog was bloated. The October 2017 memorandum itself reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog. Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigration and Customs Enforcement’s (ICE) request.
The policies in the plan haven’t just bloated the backlog—they have severely undermined due process and the integrity of the immigration court system. EOIR has placed enormous pressure on IJs by imposing unprecedented case completion quotas on them and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection. Time after time, case after case, the reality of our system is that counsel helps ensure people have a fair day in court. That’s a principle our founding fathers held dear, and that our country continues to value for good reason. A level, fair playing field is vital when someone’s life or livelihood are on the line.
And yet, as immigrants come before immigration judges, the playing field is already heavily in favor of the government. As a retired judge pointed out in a Houston Chronicle article recently, it’s written right in front of them in court: “If detainees could read Latin they would learn that the black-robed judges sit under a Justice Department seal that reads ‘Who Prosecutes on behalf of Justice.’” As employees of DOJ, judges are required to not only rule on the law, but also take into account the wishes of the political appointee who leads them: the attorney general. How level can the playing field really be?
Put simply, EOIR’s plan demonstrates the enormous power the DOJ exerts over the immigration court system. Politicizing any court is a bad idea, but that’s exactly where we are today. Rather than standing independently, EOIR falls under the DOJ, which is run by the nation’s prosecutor-in -chief. Until Congress creates an immigration court that is separate and independent from the DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications. We can and must do better.