On December 5, 2017, Attorney General Jeff Sessions issued a memorandum to the Department of Justice’s Executive Office for Immigration Review (EOIR), “Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest.” The memo and accompanying documents set forth principles and plans to reduce the backlog of cases pending before the EOIR, some of which have proved controversial.
Mr. Sessions noted that 50 new immigration judges have begun work since January 20, 2017, and that 60 more are expected to be added in the next six months. He said that the current backlog of approximately 650,000 cases pending before immigration courts is a challenge but “not insurmountable.” In addition to hiring more immigration judges and support personnel, he said:
[W]e must all work to identify and adopt—consistent with the law—additional procedures and techniques that will increase productivity, enhance efficiencies, and ensure the timely and proper administration of justice. Whether you are an immigration judge who has a unique way to better handle dockets, or an administrative assistant who has a better process for handling the distribution of files in the office, we can all contribute something to improve the system. I, too, anticipate clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.
Toward this end, Mr. Sessions listed a set of principles to be followed:
• The immigration courts, the Board of Immigration Appeals, and the Office of the Chief Administrative Hearing Officer within EOIR are responsible for adjudicating cases and administering the immigration laws. We serve the national interest by applying those laws as enacted, irrespective of our personal policy preferences.
• The timely and efficient conclusion of cases serves the national interest. Unwarranted delays and delayed decision making do not. The ultimate disposition for each case in which an alien’s removability has been established must be either a removal order or a grant of relief or protection from removal provided for under our immigration laws, as appropriate and consistent with applicable law.
• Meritless cases or motions pending before the immigration courts or the Board of Immigration Appeals should be promptly resolved consistent with applicable law.
• The efficient and timely completion of cases and motions before EOIR is aided by the use of performance measures to ensure that EOIR adjudicates cases fairly, expeditiously, and uniformly in accordance with its mission.
• The attempted perpetration of fraud upon the United States government in our immigration court system can lead to delays, inefficiencies, and the improper provision of immigration benefits. Therefore, any and all suspected instances of fraud should be promptly documented and reported to EOIR management, and any other agency with an interest in the identification of and response to such fraud (including the appropriate state bar(s) in cases of attorney misconduct), consistent with applicable law.
A “backgrounder” asserts, among other things, that the Deferred Action for Childhood Arrivals (DACA) program, prosecutorial discretion, and provisional waivers have “slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.” The backgrounder also charges that “[r]epresentatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases.”
The backgrounder states that EOIR plans to pilot video teleconferencing, where immigration judges will adjudicate cases from around the country. Also planned is a review of “existing EOIR regulations and policies to determine changes that could streamline current immigration proceedings (e.g. the [EOIR memo] on continuances issued on July 31, 2017; regulatory changes that will allow immigration judges to deny unmeritorious cases regardless if the annual limit for relief has been met).”
In reaction to the memo and accompanying documents, the American Immigration Lawyers Association (AILA) condemned “attacks by AG Sessions on the immigration courts and the due process rights of immigrants,” stating that “[f]or the AG to blame immigration lawyers for imagined trespasses is both malicious and wrong. We will not let that misinformation pass without setting the record straight.” Benjamin Johnson, AILA Executive Director, said, “Once again, the Attorney General cites flawed facts to castigate the immigration bar for the significant case backlog and inefficiencies in our immigration court system. He blames immigration attorneys for seeking case continuances, disregarding the fact that continuances are also routinely requested by counsel for the government, or are issued unilaterally by the court for administrative reasons.” Mr. Johnson noted, “The number one reason a continuance is requested by a respondent is to find counsel. Other reasons include securing and authenticating documentary evidence from foreign countries, or…locating critical witnesses. And when the government refuses to share information from a client’s immigration file and instead makes them go through the lengthy process of a Freedom of Information/Privacy Act request, a continuance is often a client’s only lifeline to justice.” AILA recommends removing EOIR from the Department of Justice.