Immigration courts are special administrative courts that only hear immigration-related cases, primarily removal (deportation) cases, and asylum claims. The entire immigration court system is run by the Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR). There are 58 immigration courts plus the Board of Immigration Appeals (BIA), an appellate court for those who do not agree with a decision that has been made.
Immigration courts are civil courts, not criminal. There is some topical overlap in terms of what cases immigration courts and criminal courts will hear; e.g., one of the reasons that a person can be deported is a criminal conviction for certain crimes. Any criminal law proceedings will be handled in the criminal courts, and the impact of a criminal court’s verdict on the foreigner’s immigration status will be decided in the immigration courts.
The EOIR Office of Legal Access Programs has created numerous self-help materials with many helpful resources for foreigners, including information on what to do if the foreigners have moved or missed a hearing. They have also established the Virtual Law Library, which contains legal resources and country conditions research resources (helpful for recognizing whether a particular country is undergoing a situation that gives rise to the need for U.S. asylum.
Generally, immigration court proceedings are open to the public. An overview of when immigration court hearings might be closed, as well as general guidelines for behavior when observing immigration court hearings, are available through each immigration court’s website. Note that electronic devices, including audio/visual recordings of hearings and taking photographs, are prohibited in immigration court.
Where Are Immigration Courts Located?
Immigration courts are located in places where there is a high immigration population. Currently, there are immigration courts in twenty-seven states and two territories. The states and territories where the courts are located are:
- Arizona
- California
- Colorado
- Connecticut
- Florida
- Georgia
- Hawaii
- Illinois
- Louisiana
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Missouri
- Nebraska
- Nevada
- New Jersey
- New York
- North Carolina
- Northern Mariana Islands
- Ohio
- Oregon
- Pennsylvania
- Puerto Rico
- Tennessee
- Texas
- Utah
- Virginia
- Washington
In addition to these permanent locations, immigration courts sometimes set up temporary ones. These temporary courts are often located in cities with many immigration cases but are not sizable enough to justify establishing a permanent immigration court in that area.
In addition to hearing cases in court, immigration court judges will often hold various hearings at Department of Homeland Security detention centers and federal, state, and local correctional facilities.
How Many Immigration Judges Are There? How Many Cases Do They Have?
Currently, there are approximately 350 immigration judges who “advise noncitizens of their legal rights, hear testimony, make credibility findings and rulings on the admissibility of evidence, entertain legal arguments, adjudicate waivers and applications for relief, make factual findings and legal rulings, and issue final orders of removal.” There are currently 733,365 pending immigration cases, meaning the average immigration judge has a backlog of over 2,000 cases.
What Rights Do Immigrants Have in the Immigration Court System?
Immigrants, even undocumented, possess basic rights under the U.S. Constitution. Specifically, the 14th Amendment guarantees due process and equal protection to all “persons” in the United States, not just citizens. In immigration court, immigrants have a right for their cases to be presented and heard – they cannot be deported without a hearing, for example.
Because the immigration court system is civil rather than criminal, immigrants have the right to retain counsel but are not provided a lawyer free of charge if they can’t afford one. In 2016, the American Immigration Council found that only 37 percent of immigrants secured legal representation in their deportation proceedings.
Due process is often compromised in exchange for the service of speed. While many immigrants can get in front of an immigration judge to plead their cases, a growing number are deported under expedited removal procedures.
What is the Current Case Backlog and What is Being Done About It?
The current case backlog is at an all-time high of 733,365. This is not due to immigration judges failing to process cases promptly. Rather, Congress has failed to adequately fund the immigration court system at the same time that it has dramatically ramped up immigration enforcement. The average wait time for a case to be heard is 721 days, about two years, with wait times in San Antonio, Chicago, Imperial, CA, Denver, and Arlington, VA, averaging over 1,400 days (almost four years).
To address the backlog, various solutions to provide more resources and flexibility to the immigration courts have been proposed, including increasing funding for EOIR, hiring more immigration judges, and increasing prosecutorial discretion to close or dismiss lower-priority cases.
There have also been proposals to reduce the immigration court case backlog by limiting access to the immigration courts, including increasing reliance on expedited procedures, limiting asylum claims based on domestic violence and gang violence, and setting quotas for resolving cases within a certain amount of time, providing an incentive for immigration judges to spend less time on individual cases or face negative performance reviews.
Can Immigration Court Decisions Be Appealed?
Individuals receiving an adverse finding can appeal to the BIA. The BIA decides appeals through paper reviews rather than in courtroom proceedings, although in extremely rare circumstances, the BIA will hear oral arguments at their headquarters. The BIA decisions are binding unless modified or overruled by the Attorney General or federal courts.
The BIA reviews findings of fact and credibility determinations under a “clearly erroneous” standard, meaning that the original decision will be reversed if it was clearly wrong. Review all other issues brought up in the first court, including questions of law, discretion, and judgment, are reviewed de novo, meaning that the BIA considers those issues on its own, not relying on the conclusions of the first court.
If the individual loses their appeal before the BIA for some matters, such as a final order of removal, they may file a petition for review in the federal Court of Appeals in their respective circuit where the original case was filed. These petitions must be filed within 30 days of the BIA decision. Unlike the BIA’s procedure, which allows people to stay in the United States while their immigration appeal is being decided, there is no automatic stay of deportation for appeals brought before the federal Court of Appeals. This places the individual at risk of removal.
Although the Attorney General can refer cases to him or herself to overturn BIA rulings, this is not common.
Do I Need a Lawyer for Immigration Court?
If you are undergoing immigration proceedings, you must hire an immigration attorney in your area. An immigration attorney can advise you through the immigration process and fight for your interests. It is always best to consult with an immigration lawyer if you go to immigration court, given that your immigration status is at stake.
Immigration laws and rules can be complex, but an attorney can research the laws for you and explain how they apply to your specific situation. They can also keep you updated if there are changes to the laws that might affect your immigration rights and options.
