Statutes of Liberty: Immigration court scheduling has gone haywire

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We’ve written before about the backlog in the U.S. immigration courts. It’s bad — it’s really bad, and getting worse, and it’s getting worse in new and interesting ways.

The good folks at Syracuse University’s TRAC system, who usually cultivate the same authorial blandness as The New Bill James Historical Baseball Abstract, describe it as an “avalanche of cases” which is “accelerating at a breakneck pace.” When our firm founder began practicing in 2011, there were about 250,000 noncitizens awaiting trial. Now, there are 1.6 million, and the quarterly increase is up to 150,000.

Let’s consider a few intuitively reasonable (but false) explanations for why this is happening:

1. Trump did it.

No, he didn’t. The Trump Administration certainly put the pedal to the floor on immigration enforcement in all sorts of ways, but the peak quarterly number of cases sent to immigration court was in FY 2019 — 78,000. That’s roughly half of the current figure.

(We hasten to add that the backlog got much worse under Trump. The immigration courts started in January 2017 with a backlog of 542,411 and ended with 1.2M. But the numbers don’t lie — the Biden administration has added another 400,000 in one year; it took the Trump administration four years to exceed that number.)

2. COVID did it.

No, it didn’t. There are two important metrics for measuring the efficiency of an assembly line: the number of widgets that go in, and the number of widgets that go out. In immigration court, we call those “Case Initiations” and “Case Completions.” COVID lowered the case completion rate from 40,000 per month to about 6,000 per month in the worst stages of the pandemic, but case completion rates are back up to 22,000 per month. That drop — 18,000 per month, from peak efficiency to current efficiency — represents only about 20% of the quarterly increase in the backlog.

So, what’s the main cause? The answer is simple: The Department of Homeland Security is initiating many more cases. We don’t know the reason why, but, digging into the numbers, our suspicion is that these cases are starting at the border. The Trump Administration’s “adjudicate cases at the border and keep them out” approach failed, and, so far, the Biden administration’s “rapid, fair, and orderly” approach is failing, too.

Our main goal in these columns is to provide readers with accurate information about what is happening to immigrants in our community and country; with rare exceptions, this isn’t about us. But our experiences in immigration court over the past two years have been — shall we say — representative of the general chaos.

One of our lawyers has had four trials cancelled on short notice — once, with a phone call less than 72 hours before trial. Another one of our lawyers has been waiting for a written decision, post-trial, for eight months. (Decisions are typically issued from the bench about thirty seconds after the closing statement.) And, in the past two weeks, we’ve noticed a large number of cases being scheduled, descheduled, and rescheduled in the court’s filing system, sometimes in a matter of days, frequently with no judge assigned to the case at all. We’re all doing our best — prosecutors, judges and defense attorneys alike — but the system is not working.

A final note — it’s important to admit such things — we made a tentative prediction just a month ago, before these quarterly numbers came out:

“We predict that the Omicron variant will have little impact on the functioning of the immigration courts. Trials will continue. Perhaps the immigration court backlog will even begin to decline.”

Boy oh boy were we wrong!

As always, we welcome your thoughts and questions and will do our best to respond.