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ILJ Online is the online component of Fordham International Law Journal.

Have We Found the Solution for the Backlog of Cases Facing Immigration Courts With a Quota System? Many Say We Need to Keep Looking.

The Executive Office for Immigration Review (EOIR) currently has 667,839 cases pending as of the end of 2017. [1] These cases have “life or death consequences.” [2] The Administration needs to solve the backlog problem in a way that encourages more efficient review of these cases while also protecting due process rights. [3] What that solution may be is hotly divided. [4] The debate came to a head recently when the Department of Justice (DOJ) issued a memorandum announcing it will utilize a quota system to “evaluate immigration judges on how many cases they close and how fast they hear cases.” [5] Immigration Judges and advocates are strictly opposed to this system because they fear it will violate due process rights , encourage partiality in judges , and provide a clear avenue for appeals, which would undermine the purpose of the evaluations by further backlogging the court. [6] [7] [8] This blog post will briefly review the structure of the EOIR that enables this quota system to be enforced, and discuss the views of those in support of and against the new evaluation system.

The EOIR, created in 1983 through an internal DOJ reorganization, is a unique agency. [9] It was formed as an offset of the DOJ and therefore it is not fully independent of the judiciary branch or executive branch.[10] As a part of the DOJ, it answers to the Attorney General’s office, currently headed by Attorney General (AG) Jeff Sessions, who has taken a more hardline approach to immigration than seen in the previous administration. [11] There are approximately 350 Immigration Law Judges (ILJs) located in about 60 courts spread across the United States. [12] On average, a typical case before an ILJ takes approximately 700 days to be resolved. [13] Due to the structure of the EOIR, AG Sessions has the discretion to “oversee and overrule these courts.” [14] It is this power that enabled AG Sessions to institute the quota system despite significant resistance from ILJs and Immigration Law advocates. [15]

The evaluation system issued to the Immigration Courts in April by the DOJ consists of a rating system ranging from unsatisfactory – satisfactory performance. [16] ILJs who complete fewer than 560 cases per year are given a mark of “unsatisfactory performance,” those completing between 560 and 700 cases a year “need improvement,” and those who complete 700 or more cases a year are given a mark of “satisfactory performance.” [17]

The DOJ provided several justifications for this quota system. [18] In a memorandum sent to the EOIR in December 2017, AG Sessions explains that “[the DOJ is] prioritizing the completion of cases and developing performance measures to ensure that EOIR's mission of fairly, expeditiously, and uniformly administering the immigration laws is fulfilled.” [19] AG Sessions further states in this December Memo that the efficient review of cases is imperative for protecting our “national security, public safety, and the employment prospects and wages of the American people.” [20] While the EOIR is in the process of hiring more ILJs, the DOJ asserts that this quota system will supplement that solution and help to make a significant dent into the enormous backlog of pending cases.[21]

However, many ILJs and informed advocates argue that this quota system will only hurt, rather than alleviate the problem. [22] Human Rights First advocate Eleanor Acer asserts that “imposing arbitrary case completion quotas” will “threaten due process and fairness” since ILJs will not be able to give each complex and potentially life threatening – where the applicant seeks asylum – case the time and attention they require. [23] This is especially concerning in Immigration Courts because the cases typically involve non-represented claimants who are non-English speakers, and are often minors as young as two or three. [24]

Another issue concerns the potential interference with the impartiality of judges. [25] Many ILJs and advocates voiced fear that the quota system will provoke ILJs to consider the effects their decisions may have on their career prospects and become biased by “the knowledge of the type of outcomes that the current DOJ desires: more denials of asylum claims, and more deportations.” [26]

Finally, many argue that the quota system will only add to the backlog problem facing the courts. [27] Judge A. Ashley Tabaddor explains that by requiring ILJs to quickly review cases, the DOJ created an easily appealable issue. [28] As a result, the number of pending cases will increase as more and more cases are caught waiting for a reviewing court to conclude the case or remand it for further review by the original ILJ. [29] Whereas normally a reviewing court could give some discretion to the ILJ, the quota system raises concern about the thoroughness and impartiality of the ILJ’s decision.

In light of these arguments it will be interesting to see how these quotas are utilized and enforced when they come into effect October 1, 2018. While there is no question that the backlog of pending case needs to be resolved, whether or not these quotas are the answer will continue to be debated and contested.

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.

BlognaskEmily Richey