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Immigration Law Associates, PC

FOIA Reveals EOIR’s Failed Plan for Fixing the ICE Backlog

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The Executive Office for Immigration Review plan to “significantly reduce the case backlog by 2020” was approved by the Deputy Attorney General for the Department of Justice in October 2018. But it was quickly noted that this plan not only is flawed but it is also challenged by the fundamental and structural problems the US Immigration court system faces. They are no longer able to guarantee that all the decisions they render are timely, fair, and just in accordance with the law and the Constitution, subsequently causing the erosion of public confidence in the system.

The current administration has been able to introduce a lot of policies thanks to the following issues causing thus, an outstanding increase in the court backlog with more than 820,000 cases by the end of 2018.

Several conflicts of interest are noted. For a start, the immigration courts administered by EOIR are located within the Department of Justice (DOJ) which is the same agency in charge of prosecuting immigration cases at the federal level. Then, immigration judges (IJ) are classified as government attorneys meaning that they are under the authority of the Attorney General, who is the chief prosecutor in immigration cases. Moreover, a lot of pressure is put on the IJ to complete 700 removal cases in the next year if not they may lose their jobs. To make matter worse, the DOJ has installed software that tracks and ensures the completion of these cases. It is not surprising that many legal organizations are totally against these quotas which represent the “death knell for judicial independence” according the Nation Association of Immigration Judges (NAIJ).

Even though the EOIR was able to hire more IJs quickly as they had planned, the hiring of IJs are more focusing on their litigation experience at the expense of other relevant immigration law experience”.

Another cause of the backlog is the fact that IJs and the BIA were using administrative closure in order to temporarily stop removal proceedings by transferring active cases to inactive cases on the court’s docket. Now with the EOIR plan, cases that were previously closed are being put back on the active immigration court dockets.

Another flaw in the EOIR’s plan is their request to force judges to deny continuances in immigration court which is problematic given that the goal of continuances is for respondents to find good counsel and for judges to be able to conduct proceedings faster and resolve cases fairly and effectively.

The EOIR’s plan wants to mainly use Video-Teleconferencing (VTC) technology in immigration courts. Nonetheless, this tool has been proved to cause delays as reported by 29% of EOIR staff mainly because of technological glitches but also it cannot properly transmit nonverbal cues which even telephonic interpreters cannot catch. IJs at that point are not able to determine appropriate relief since they cannot make sound assessments of individuals’ credibility and demeanor; in the same vein. Attorneys cannot consult confidentially with their clients.

It is clear that these policies on which the EOIR relies are compromising due process. America’s core values are based on fairness and equality, therefore it is more than imperative that the immigration court be restructured and freed from the DOJ grip in order to become an independent Article I court.

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