The immigration court system is an administrative court run by the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR), under the power of the U.S. Attorney General. These courts only hear cases involving immigration, such as proceedings to remove someone from the United States, and granting or denying individuals’ legal immigration status when a dispute has arisen between the person and ICE (Immigration and Customs Enforcement).
They also hear appeals from foreign nationals who are seeking refugee status or asylum. There are approximately 350 immigration judges in 58 immigration courts nationwide.
The other arm of the immigration court system is the Board of Immigration Appeals, an appellate body which hears cases where a determination was made by an immigration court judge but one of the parties is dissatisfied and wants to appeal.
The immigration courts are civil courts and do not order criminal penalties, but they do handle cases involving foreigners who are alleged to have committed an immigration crime to determine whether the immigrant’s status should be adjusted. Because the immigration courts are civil courts, the government is not obligated to provide people with legal representation. This is in direct contrast to typical criminal cases, where there is a constitutional right to an attorney.
The U.S. immigration court system has recently been the subject of severe criticism regarding its performance. The problems have gotten bad enough that in recent years a block of immigration judges resigned in frustration.
What Problems Do Immigration Courts Face?
Immigration courts face numerous difficulties, including heavy caseloads, underfunding, inconsistent decisions and treatment of the immigrants by the courts, and lack of transparency. Some of these challenges include:
Heavy Caseloads: One problem is that the immigration court system is simply overwhelmed with cases. Immigration courts hear over 300,000 cases per year. As of 2014, each immigration judge was handling over 1,400 cases per year – far more than federal judges (566 cases per year) or Social Security administrative law judges (544 hearings per year). This can sometimes leave judges with less than 15 minutes to make a decision on a case.
In addition to the burdensome daily calendar schedule, as of 2021 there is a backlog of more than 1.3 million cases waiting to be heard. That amounts to an average backlog of more than 3,700 cases per judge. That amount is a quadruple of how many cases were backlogged ten years ago.
The caseload problem has led to an average wait time for a case to be heard of 721 days, about two years. Wait times in the busiest courts average over 1,400 days (almost four years) as of June 2018, and there are cases in the system that have been waiting ten years. Backlogs and delays benefit neither immigrants nor the government:
- Those with valid claims are kept in limbo and often in detention, increasing the suffering of the immigrants and the costs of detention for the government. Some detainees with valid claims simply give up
- Families are often separated for long periods of time
- Removal of those without valid claims is delayed
- Chances that overburdened judges will make mistakes are increased
- Questions are raised as to the integrity of the immigration justice system
To address the backlog, various solutions to provide more resources and flexibility to the immigration courts have been proposed, including asking Congress for more funding, hiring more immigration judges and staff, and increasing the power of prosecutors to close or dismiss lower-priority cases. There have also been proposals to reduce the immigration court case backlog by reducing access to the immigration courts. This includes developing expedited procedures, limiting asylum claims based on violence (domestic or gang-related), and setting quotas for judges to resolve cases within a certain amount of time or face negative performance reviews.
Underfunding: The immigration court system also suffers from gross underfunding. Over the past decade, Congress has greatly increased the funding for immigration enforcement, and this increases the hundreds of thousands of new removal cases the immigration courts receive each year. In contrast, funding for the courts has been increased only modestly.
The federal government spends far more money on arresting people at the border and identifying people here in the U.S. who are undocumented than it does on the immigration courts. While funding for immigration courts has increased slightly in recent years, it has been significantly outpaced by spending on immigration enforcement.
Inconsistent decisions and treatment of immigrants: Another criticism of the immigration court system is that there is a lack of uniform procedures in place. A person’s chance of being granted asylum can depend not only on which court’s jurisdiction they fall into, but also on the specific judge who is hearing the case. Cases are assigned randomly to judges within the court, and grant rates vary wildly in some immigration courts. San Francisco has an especially high difference in approval: from 2013-2018, one judge granted 90% of asylum requests, and one only granted 3%. Courts in Chicago, Arlington and San Antonio also had large inconsistencies at the judge level. Notably, one judge in Oakdale, Louisiana has never granted a request for asylum.
These inconsistent rulings have led to a number of appealed cases. However, the immigration court system’s appellate board, the Board of Immigration Appeals (BIA), until recently only had 15 members, and was ill equipped to deal with the workload. This leads to further appeals (this time to the federal appellate court system), which further delays completion of the case.
Lack of Transparency: The immigration court system is also criticized for its lack of transparency. Many immigration courts are housed in prisons, where the public cannot access them, including attorneys who may wish to assist those threatened with deportation.
Immigration courts also release less documentation than state, county, and other federal courts, making appeals more difficult. Immigration court officials defend this policy by stating that it is in place to respect immigrant privacy. However, there is often no privacy concern when the immigrant is trying to retrieve their own file in order to make an appeal, yet requests for the necessary documents are often denied, or only parts of the file are provided.
Further compounding the problem, the immigration courts are subject to special rules of procedure that forbid the public from accessing online legal filings in nearly all immigration appeals. Those documents are available in almost every other category of legal cases. The immigration courts’ lack of transparency means the person seeking immigration benefits is forced to defend themself against secret law. For immigrants who are facing deportation, no case law could be more important. For asylum seekers, gaining access to the body of law in immigration matters could be a matter of life or death.
Do I Need A Lawyer If I Go Before the Immigration Court System?
Immigration cases are complex. The regulations that govern immigration are written entirely in legal-ese, and there are hundreds if not thousands of regulations governing immigration. Missing a single required regulation can result in denial of the result that is sought. An immigration issue may well have a life-changing effect upon you and your family.
If you have been the victim of violence or persecution in your homeland, your immigration status is literally a matter of life or death. Studies have shown that people with an attorney have a 15 times higher chance of success. It is very important that you have an experienced immigration attorney at your side to help you navigate the immigration court system.
