This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
The Trump administration has a logistical problem. If the administration wants to fulfill its promises of mass deportation via legal means, it has to use the judicial machinery of the U.S. immigration system.
Unfortunately, the immigration courts are backlogged to the moon – with 3.6 million cases pending at the end of FY2024, there is no way that the present machinery can keep up with current demand, never mind accelerate the pace of adjudications. There are about 700 immigration judges in the United States.
If they each handle two trials per day, every workday of the year, that’s about 280,000 cases per year — it would take thirteen years to clear the backlog, assuming no new cases came into the system. And more cases are coming into the system — a lot more. Although numbers vary, Q3 of FY2024 saw 100,000 new cases filed in a single month.
So, what is the administration going to do? We know of two steps so far — one is a fact, and one is a well-sourced rumor.
The Fact: Half of the Judges on the Board of Immigration Appeals Have Been Fired
There is just one appeals court for the entire U.S. immigration system — the Board of Immigration Appeals, in Falls Church, Virginia. Each and every decision made by all seven hundred immigration judges is appealable to the Board. That means that the Board has a heavy workload, and getting a decision on appeal often takes years.
Hiring more appellate judges — or more staff attorneys, who can assist with research and drafting — would be one way to speed up the Board’s work. (The Trump administration did that, in its first iteration, as did the Biden administration.) That is not what the new Trump administration has done. Instead, the new administration has fired about half of the judges on the Board of Immigration Appeals.
Our view is that this action is both political — every judge fired was appointed by former President Biden — and practical. The Trump administration does not intend to fix the problem of backlogs at the Board of Immigration Appeals. Instead, it intends both to abolish the Board and to abolish the lower immigration courts, by converting them into Special Inquiry Officers, from whose decisions no appeal will lie.
The Rumor: The Immigration Courts Will Revert to Proceedings Before Special Inquiry Officers
This rumor comes from Jason Dzubow, Esq., who published it in his excellent blog, The Asylumist. Dzubow is, in my view, the best attorney specializing in asylum law in Washington, and a real expert on U.S. immigration law — so it’s a very-well sourced rumor, but it is still unconfirmed by outside sources.
According to Dzubow’s source, the Trump administration intends to convert the existing immigration judges (and perhaps the remaining Board of Immigration Appeals judges) into Special Inquiry Officers. This would be a real throwback to procedure last seen before 1973, when Special Inquiry Officers were converted into Immigration Judges by regulation.
Dzubow’s interpretation, we think, is that by converting the immigration courts into special inquiry proceedings, the administration would be able to (1) decrease the due process protections available to respondents, and (2) tap a ready pool of officials already working at the Department of Homeland Security — existing immigration judges, ICE prosecutors, and USCIS adjudicators. (ICE prosecutors would no longer be needed in the streamlined system, and so converting them into Special Inquiry Officers would be a natural move.)
It is unclear how the new proceedings would be conducted, how the existing body of law would be applied to them, and what substantive changes this would bring for our clients. It would be an earthquake in the immigration court system, and the consequences are unpredictable.
In our view, this is still a rumor, but a pretty plausible one from a sensible and well-informed source. When we have new information, we will pass it on to our readers!
As always, we are grateful for your questions and comments, and will do our best to respond.
