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1. What Will It Take to Eliminate the Immigration Court Backlog? Assessing “Judge Team” Hiring Needs Based on Changed Conditions and the Need for Broader Reform

Author:
Donald Kerwin
Publication Date:
06-2024
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.
Topic:
Immigration, Courts, Borders, Asylum, and Department of Homeland Security
Political Geography:
North America and United States of America

2. Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna

Author:
Donald Kerwin
Publication Date:
06-2023
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This paper introduces a special collection of papers on access to justice, the rule of law, and due process in the US immigration system. The collection honors Juan Osuna, a devoted public servant and former director of the Executive Office for Immigration Review (EOIR), which is the agency in the US Department of Justice (DOJ) that administers the Immigration Courts, the Board of Immigration Appeals (BIA), and legal orientation, assistance, and representation programs. The collection consists of five articles published in the Journal on Migration and Human Security and six CMS essays, written by some of Osuna’s close colleagues and friends. Section I provides a brief biography of Juan Osuna’s life, recites his titles and professional accomplishments, and outlines his views on some of the topics covered in the papers. The section draws heavily from two events that book-ended Osuna’s tenure as EOIR Director, which were organized by the Center for Migration Studies of New York (CMS). The first took place on February 16, 20121 and the second on July 18, 2017,2 just before Osuna’s untimely death at the age of 54 on August 15, 2017. This section also includes remembrances and reflections from Osuna’s colleagues at a November 15, 2018 event in Washington, DC, devoted to honoring his legacy.3 Section II summarizes the 11 papers in this collection, which reflect Juan Osuna’s commitment to humanizing the law and its fair application to all. The papers examine and propose ways to strengthen: • The nation’s response to large-scale migration. • The US asylum system. • The removal adjudication system. • Immigration Court backlog reduction efforts. • The treatment of survivors of human trafficking and modern-day slavery. • Due process for immigrants through legal representation. Section III offers a concluding reflection on the rule of law, and Juan Osuna’s legacy in a time of political division and discord.
Topic:
Immigration, Courts, Rule of Law, Asylum, and Due Process
Political Geography:
North America and United States of America

3. The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog

Author:
Donald Kerwin and Richard Millet
Publication Date:
06-2023
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as: • Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. • The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. • The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. • The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. • The absence of a statute of limitations for civil immigration offenses. • Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. • The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). • The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. • A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
Topic:
Immigration, Courts, Asylum, and Visa
Political Geography:
North America and United States of America