DOJ struggles with growing immigration case backlog

Inside the glass high-rise that houses the headquarters of the nation’s immigration courts, the focus is on how to make the immensely strained system more efficient.

Grappling with an inherited backlog that has ballooned to 1 million deportation cases, a yearslong wait for hearings and White House pressure, the Executive Office for Immigration Review is buying real estate for new courts, creating an online filing system, streamlining training, and hiring judges.

And it still can’t keep up.

Its monthly caseload more than doubled last October, when it was 35,776. In October 2017, it was 15,045.

“We are working on what we can control and we’re trying to keep the inertia going,” said James McHenry, who leads the Executive Office for Immigration Review.

EOIR, as it’s known, is the arm of the Justice Department that oversees deportation proceedings — whether immigrants are allowed stay in the United States or whether they are turned back to their countries. Unlike independent trial courts, immigration court judges and employees work under Attorney General William Barr.

Donald Trump has railed against the country’s immigration system, accusing asylum seekers who flee their home countries because of violence and poverty of trying to game the system. The court backlog existed long before Trump took office. But a crackdown on the Southwest border and illegal immigration plus a surge in asylum-seeking families from Central America have added more cases.

The Associated Press recently visited immigration courts in 11 different cities in late fall, observing scores of hearings that illustrated how the crushing caseloads and shifting policies are creating turmoil.

EOIR officials say it will take time for the changes they are implementing to sink in across a system where the average time is 130 days for cases where the immigrant is held in detention, and about 970 days — nearly three years — when the person is not detained. Plus, Justice Department officials ordered immigration judges to stop putting cases on hold indefinitely — a tool they used to manage a swelling docket — which brought hundreds of thousands of cases back.

McHenry and his staff are focusing on the data, technology, and methodology in their agency. But they can’t control the entire massive immigration system.

“If we can get the backlog to decrease even a little bit that would be tremendous,” he said.

Among their biggest change is the recent creation of electronic filing system that is already being piloted in Houston, Aurora, Colorado, and Philadelphia that will eventually replace mountains of paperwork stored in blue files used by most judges.

Under the new system, judges can generate orders, send information and read up on files. The system is meant for everyone who deals with immigration court — attorneys, plus multiple different agencies involved in immigration enforcement — and synthesizes all information so it can be accessed by all. It allows judges to check family histories, send orders and take notes. They can generate a court date with one click. By the end of 2020, 36 sites should be online.

Immigration attorney Ruby Powers, who practices in Houston, said she hasn’t seen the new system make a dent yet, but it’s new. And she and other attorneys welcome any chance to use less paper. She said about five years ago there was a less-comprehensive version of an electronic system, but it fizzled.

“In general, we have a hope of being more efficient,” she said. “I think they are trying, but it’s difficult.”

EOIR has asked for a budget of $673 million this year — up from $312 million in 2014 — in part to construct more courtrooms. Right now, it has 439 judges. It can hire 534, but doesn’t have courtroom space. They are working on adding courts in New York City, Los Angeles, San Francisco, and Houston. Their goal is to have one clerk per judge, and it wants to hire 100 more Spanish interpreters, and add Chinese interpreters.

McHenry has also created a department that focuses on standardized training for judges, law clerks, and staff members and creates policy memos to help make more cohesive, uniform decisions.

EOIR officials have added supervisory judges to every area. And they’ve set deadlines for staff to complete cases quicker by trimming internal deadlines that were often months longer than necessary, he said.

Most of their upgrades are focused on speeding up internally, McHenry said. But members of the judges’ union they often feel they are being pushed, forced into quotas and the administration is slowly taking away their autonomy as the attorney general gives himself more power over the system.

The agency is embroiled in a battle with the union — which has spoken out about the need for the courts to be independent and concerns over the increasing authority. EOIR officials are also seeking to disband it.

At a hearing on the labor dispute earlier this month, EOIR officials tried to argue the judges were managers — and therefore could not be in a union. Immigration Judge Ashley Tabaddor, speaking as the head of the union, said judges actually have less authority than ever.

“The effort is to eliminate unions to create complete and unfettered control to be able to uniformly and without any checks to implement decisions,” she said.

McHenry said he is trying to streamline a system that has been unwieldy for too long. And he’s starting to see progress.

“The next phase is sustaining it,” McHenry said.