Frontera Fund News Trump Watch

Sessions Considers Increasing Immigration Court Backlog by 350,000

Jeff Sessions

Think your to-do list is intimidating? Imagine being an immigration judge. Immigration courts currently face a backlog of 650,000 cases. U.S. Attorney General Jeff Sessions is mulling over a legal change that could add 350,000 cases to the docket, bring the backlog to a whopping 1 million cases.  

Consider this: There are currently around 330 immigration judges. So each judge would have to oversee 3,030 backlogged cases. If every judge raced through each case in seven days, it would take them 58 years to eliminate the backlog, not including weekends and vacations and any other delays, and not including the millions of new immigration cases that would have come to court during that time.

Yet Sessions is optimistic, perhaps because he hasn’t bothered to do the math. In a December memo to the Department of Justice, he wrote, “we nevertheless face a steady stream of criticism that we are overwhelmed and that the backlog is intractable. I strongly disagree – this challenge is not insurmountable, but it does require a concerted effort to address it.” 

What concerted effort does Sessions have in mind? Well, one of his ideas is to make the backlog bigger.

That’s going to cripple the courts even further. They can’t do the cases they have now. Why is [Sessions] out there looking for more? –Paul Schmidt, former head of the Board of Immigration Appeals

Earlier in January 2018, Sessions took the unusual step of referring an immigration case to himself. He did so to call into question and to consider eliminating the legal procedure of “administrative closure.” The name is misleading because it doesn’t permanently close a case; it just removes it from the active court docket. Judges do this to “avoid the repeated rescheduling of a case that is clearly not ready to be concluded,” according to the Board of Immigration Appeals.

For example, if an immigrant can show she’s eligible for a green card but is waiting to hear back from the government about whether she’s approved, the judge clearly cannot make any decisions without that information. So the judge would remove the case from the active docket. Or perhaps an immigrant with an expired visa is married to someone who is undergoing the process of becoming a U.S. citizen and who plans to file a visa petition on her behalf. The judge would have to wait for that process to be completed and would remove that case from the active docket.

Once an immigrant’s case is administratively closed, they are not in the country legally, but the government is not actively trying to deport them – though there are no guarantees. It’s essentially immigration limbo.

In his letter to the DOJ and the parties involved in the case he referred to himself, Sessions asked:

Do immigration judges have the authority to declare an administrative closure?

If they do have that authority, should I withdraw that authority?

If I do withdraw that authority, should judges revisit the 350,000 administratively closed cases?

If that happened, “that’s going to cripple the courts even further,” says Paul Schmidt, former head of the Board of Immigration Appeals. “They can’t do the cases they have now. Why is he out there looking for more?”

In related news, immigration judges in North Carolina are refusing to conduct bond hearings for detained immigrants. Judges have a constitutional duty to conduct bond hearings to determine whether a person will be detained or free during immigration proceedings.

This is highly unusual and is apparently not happening in any other state. The American Immigration Council and other legal organizations filed a class-action lawsuit on January 17 to force these immigration judges to perform their constitutional duty.

Lacey and Larkin Frontera Fund will keep you updated on these developing issues.