Border Management Updates
Tom Homan, designated as the border czar, has made strides in reducing illegal crossings along the U.S.-Mexico border, achieving levels not seen since the early 1970s. However, various challenges hinder the effectiveness of his internal enforcement strategies. Key issues include violent opposition and significant backlogs in immigration courts that are at crisis levels.
To address the backlog, Congress is directing funding toward hiring additional immigration officers. Despite this effort, the backlog continues to grow. Under the Biden administration, the active case load jumped from 1,457,547 in fiscal year 2021 to 3,716,106 by fiscal year 2024. Although numbers have been reduced somewhat, it’s still a daunting task, with 3,432,519 cases remaining active as of August. If we also take into account 361,614 inactive cases, we’re nearing a staggering total of 4 million cases.
The increase in judges hasn’t been smooth, largely because the Justice Department’s immigration office is not restricting new judge appointments to those with immigration law experience. This could lead to longer case resolutions and a greater number of appeals. The Immigration Appeals Board has to carefully consider this aspect.
Relying solely on hiring more judges without experience might not effectively tackle the backlog. It could be more prudent to revamp court operations instead.
First and foremost, the Immigration Review Office needs accurate data on the number of unprocessed cases.
Foreign nationals must comply with court procedures and provide their addresses. Those who fail to do so shouldn’t contribute to the backlog since it’s challenging to reach them when a hearing slot opens up.
It would be beneficial to send address confirmation letters to all those in the backlog. If there’s no response, a Performance notice should then include details about the Master Calendar Hearing. These hearings are crucial as they clarify charges against the alien and pinpoint legal issues relevant to their case.
If a foreign national doesn’t appear, they may be tried in absentia. Immigration judges overseeing master calendar hearings should have clear guidelines on whether aliens failing to appear should be tried or possibly removed from the backlog.
If trying everyone in absentia proves unfeasible, perhaps only priority enforcement cases should be considered for absentee hearings.
In a default hearing, ICE must demonstrate that the foreign national is subject to deportation and that notice of the hearing was adequately sent. Current law allows notice to be deemed sufficient if sent to “the most recent address provided by the alien.”
The judge’s verdict stands unless the foreign national files a motion to cancel. For that to succeed, the alien must show that their absence was due to exceptional circumstances, lack of notification, or being in custody.
According to TRAC, discrepancies in asylum denial rates among judges are not just based on the legitimacy of asylum seekers’ claims. This might relate to the hiring practices, particularly with too many judges lacking immigration experience. Reading through USAJOBS listing, “immigration” isn’t even mentioned in many qualifications.
On top of this, the Department of Justice is bringing in 600 active military attorneys who may take roles as temporary immigration inspectors without prior immigration experience. Some experts, like Margaret Stock, caution that this could be problematic, describing immigration law as extraordinarily complex and ever-evolving.
Furthermore, utilizing active military as immigration officers could breach the law under the Posse Comitatus Act, which prevents military involvement in civil law enforcement without specific authorization.
The previous administration had set up dedicated dockets, but mainly to prioritize cases involving newly arrived unaccompanied children and families seeking asylum. Just speeding up processing for new arrivals won’t help reduce backlog effectively.
We propose establishing a dedicated docket to streamline backlog reduction. For instance, we could create expeditious case files for simple or meritless cases, along with a docket for similar issues like hearings in absentia or Haitian asylum claims. Master calendar hearings could help consolidate similar issues and offer vital information for quicker processing.
Judges should not take too long to gain expertise in laws relevant to similar issues, promoting faster resolutions while maintaining due process. The Immigration Judgment Office can support less experienced judges by providing established precedents.
Implementing these strategies could significantly alleviate the court’s current backlog while also allowing time for hiring judges with the needed immigration experience.
