RIO GRANDE CITY, Texas (Border Report) — For each of the past seven fiscal years, Congress has appropriated additional money for the Department of Justice to hire more immigration judges.
Congress approved money for 55 new immigration judges to be added in Fiscal Year 2016; 10 in Fiscal 2017; 100 in Fiscal 2018; 50 in Fiscal 2019; 100 in Fiscal 2020; 100 in Fiscal 2021; and 100 in Fiscal 2022.
But as of December, there were only 576 immigration judges on board, and the backlog of immigration cases is at the highest in history.
Currently, there is enough federal money for the Executive Office of Immigration Review, the agency that is part of DOJ that oversees the U.S. immigration court system, to fund 634 immigration judges.
As of the end of February, there were over 1.7 million pending immigration cases, according to Transactional Records Access Clearinghouse (TRAC), a nonprofit data-gathering organization from Syracuse University that tracks immigration court cases.
From Oct. 1 through Feb. 28, immigration courts received 344,604 new cases, but the courts completed only 108,610 cases during that period, TRAC reports.
Part of the backlog is attributed to the coronavirus pandemic, during which time immigration courts were closed yet the Department of Homeland Security continued to refer migrant cases. Also contributing are the high numbers of migrants who since 2021 have crossed the Southwest border from Mexico seeking asylum in the United States and are referred to the courts by DHS.
But the addition of 100 new immigration judges coupled with sweeping new asylum processing rules announced Thursday by the Departments of Justice and Homeland Security, could actually help to lower the backlog, court watchers tell Border Report.
The new asylum screenings are to begin in June and will allow certain asylum officers from U.S. Citizenship and Immigration Services to consider the asylum applications of some migrants subject to expedited removal.
That would help to alleviate certain responsibilities from U.S. immigration court judges, TRAC researcher Austin Kocher told Border Report on Thursday.
“The combination of hiring more immigration judges and moving many asylum cases out of the immigration courts could help the immigration court backlog considerably,” he said.
He added that historically, asylum applications processed by USCIS are granted at a higher rate than by immigration judges.
“So this new rule could result in much higher rates of approval than before,” Kocher said.
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U.S. Rep. Henry Cuellar, the vice-chair of the House Appropriations Homeland Security Committee, says the problem has not just been getting money to hire more immigration judges but actually filling the positions.
He told Border Report he is frustrated with the overwhelming number of immigration cases waiting for review, especially since he has been instrumental in getting his committee to approve hundreds of millions of dollars each fiscal year for EOIR to add immigration judges and new staff nationwide.
“We thought by now with all this new money we have appropriated they’d hire hundreds and hundreds of judges. They have hired judges but not to the large numbers we thought,” Cuellar said Wednesday in Rio Grande City, Texas, where he announced millions in federal aid to restore an aging county courthouse from the 1800s.
“Now with the new money let’s see how the Biden administration does in hiring the new judges. So we’re hoping,” he said.
The new money allocated in Fiscal 2022 is over $760 million to hire 100 immigration judges, plus staff, as well as to open new immigration courtrooms throughout the country.
This includes eight new immigration judges is Cuellar’s hometown of Laredo, Texas, which, where the DOJ is set to open eight new courtrooms — the first-ever permanent immigration courts to operate from that South Texas border town, which overlooks the Mexican city of Nuevo Laredo.
“Our backlogged immigration system is overburdened, underfunded, and has reached an unprecedented level of neglect,” Cuellar said.
The massive influx of new money was added to the Fiscal 2022 omnibus spending bill passed by Congress earlier this month.
The funding also includes building new courtrooms so that “floating judges” — those without courtrooms — have a permanent place to work.
“That’s important because they have floating judges who are ready to do some work but don’t have a courtroom. So we’re wasting paying somebody’s salary while they’re not doing the work,” Cuellar said.
Money also will go toward automating and better computerizing current immigration courts and hiring additional support staff, he said.
But some court watchers say the way the current immigration court system is set up is only adding to an endless sea of backlogged cases.
DHS “controls the flow of cases, not the courts. If they keep the spigot turned on high, no amount of judges are going to be able to keep up,” Kocher said. “DHS has to stop trying to deport everyone.”
Immigration lawyers say another contributing factor is that immigration judges are under the Department of Justice, not an independent agency.
The American Immigration Lawyers Association (AILA), which represents thousands of immigration lawyers, backs legislation in Congress that would create an independent immigration court system, not under the control of the U.S. Attorney General.
The Real Courts, Rule of Law Act of 2022 was introduced by Democratic Reps. Zoe Lofgren, of California; Jerrold Nadler, of New York; and Hank Johnson of Georgia.
“For years, AILA has advocated for an independent immigration court and this legislation is a long-awaited step forward in this effort,” AILA Executive Director Benjamin Johnson said.
“This legislation is an extremely important step toward a court system that will ensure justice for immigrants as they face life and death outcomes from their cases. Longstanding and profound problems have hampered the capacity of the immigration courts to deliver timely and fair decisions and undermined the public’s confidence in the system. The courts, housed in the Executive Office for Immigration Review, have been controlled by the Department of Justice (DOJ), rendering them vulnerable to interference from the executive branch,” AILA President-Elect Jeremy McKinney said.
“It boggles the mind that America’s immigration courts are under the authority of a single person, the attorney general, who also happens to be the nation’s chief prosecutor on immigration matters. How can that ensure justice?” McKinney said.
As to how and when changes could be felt, Kocher said only time will tell and his group will scrutinize court records to spot any new trends.
“We really need to wait until we see the data,” he said.