The Trump Administration’s “zero tolerance” prosecution policy for unauthorized border crossings has separated families and placed children in cages. And President Trump’s new executive order, which purportedly ends the separation of parents and children, still heralds indefinite detention of families until criminal cases against the parents and any immigration matters involving family members are completed. Many of these detainees will land in the nation’s already overburdened immigration courts — just as Attorney General Jeff Sessions is also quietly remaking these courts with his brand of reform.
Sessions, a notorious immigration opponent, has introduced changes to immigration court that masquerade as technical tweaks, but fundamentally remake how immigration judges hear cases, while at the same time making it more difficult for immigrants to effectively make claims for asylum — protection for those seeking refuge from persecution.
In just the past four months, Sessions voided precedent that guaranteed asylum seekers the chance to testify before an immigration judge could deny their application, and told immigration courts that suffering domestic violence is no longer a sufficient basis for granting asylum.
He has curtailed immigration courts’ use of a procedural tool to better manage their heavy caseload, and this fall, he’ll introduce strict new quotas for immigration judges that may leave them insufficient time to consider individual cases. All this in the name of “judicial economy and the timely administration of justice,” two principles that Sessions’ changes will actually hinder.
Why would an immigration enforcement hardliner want to dismantle immigration courts? Look to his boss. Just this week, President Trump said, “Ultimately, we have to have a real border, not judges.”
The first salvo came in March, when the Department of Justice announced it would subject immigration judges to strict case completion quotas and time benchmarks. This policy risks incentivizing judges to short-change due process, the right to fair treatment in our judicial system as laid out in the Constitution.
Beginning in October 2018, the department will evaluate immigration judges individually, based on how many cases they complete and how quickly they complete certain procedural steps. The new plan established several requirements for immigration judges to receive a “satisfactory performance” rating, including two particularly problematic metrics:
- Immigration judges must complete 700 cases per year regardless of the type of cases before them.
- Judges must meet at least three of six time “benchmarks,” including, for example, allowing “no more than three days [to] elapse from merits hearing to…case completion” in 85 percent of non-status detained removal cases, and in 85 percent of “motions matters, no more than 20 days elapse from immigration judge receipt of the motion to adjudication of the motion.”
If an immigration judge fails to meet these quotas, the Justice Department may terminate their employment.
These quotas don’t align with reality. Immigration cases vary widely in their complexity, as do the dockets of individual immigration judges. Some judges complete 1,500 cases per year, while others with more complex caseloads complete fewer than 300. Cases ending in relief decisions like asylum, for example, currently take an average of nearly three years to resolve. Two-thirds of immigration judges complete fewer than 700 cases annually.
In short, quotas risk pushing immigration judges to prioritize speed — even at the cost of fair hearings.
To be sure, case backlogs and other inefficiencies slow down many proceedings — potentially leaving individuals entitled to remain in the United States in legal limbo for years — but unrealistic quotas are not the answer. A year-long study by Booz Allen Hamilton and the National Center for State Courts, commissioned by the Department of Justice and published in 2017, recommended a package of reforms to reduce immigration court backlogs — including adopting a performance evaluation model that “emphasizes process over outcomes” and “places high priority on judicial integrity and independence.”
Ironically, many of the changes introduced by Sessions may actually lead to more burdens on the immigration court system. In testimony before Congress, the president of the American Bar Association warned quotas may increase the number of appeals as “[i]ndividuals who feel that their cases were summarily decided because of an arbitrarily imposed deadline may be more likely to appeal…simply shifting the caseload burden.” And a June study from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that other new DOJ policies aimed at “speeding case dispositions” in practice “have actually lengthened completion times so that these have risen to new all-time highs.”
These changes come as immigration courts are facing enormous strain. The number of new immigration court cases has increased significantly under the Trump administration — contributing to an already overwhelming backlog. According to data from TRAC, while the backlog of immigration cases increased 283 percent over the past 10 years, the number of immigration judges increased just 54 percent. With climbing backlog but no proportional increase in resources, judges face pressure to resolve proceedings of enormous consequence quickly — leading one immigration judge to describe the system as “death penalty cases heard in traffic court settings.”
And this is only the beginning. Last month, the Department of Justice proposed granting the Attorney General expanded power to personally overrule immigration decisions. Another measure would limit immigration judges’ ability to temporarily halt proceedings while an immigrant waits for an application for legal status to be resolved. Immigration courts are supposed to be a backstop against unfair treatment in our system. There is every indication that Sessions will continue to use his power to quietly destroy them.