Fixing the EOIR: our immigration courts are desperately overburdened

By Luis Arias
Associate Editor, Vol. 21

The Executive Office for Immigration Review (EOIR) adjudicates immigration cases by interpreting the nation’s immigration laws. The court is an agency within the Department of Justice and, under delegated authority from the Attorney General, conducts immigration proceedings and appellate reviews.[1] There are 58 such courts nationwide, with about 250 immigration judges presiding over them.[2]

Modern immigration patterns and resulting policies addressing the immigration issues have flooded the courts, draining the already stressed system. The hundreds of thousands of cases that are currently active have overburdened the system, preventing efficient resolution for immigrants and undermining the justice system.

Congress has exponentially increased funding for immigration enforcement but not for immigration courts. Deportations have thus continued to increase, while the judges adjudicating the claims have not. Each immigration judge handled an average of 1,400 cases in 2014, and the country’s 58 immigration courts currently have about 445,000 cases in their backlog.[3] Because of the high caseload, judges report not having adequate time to learn the increasing complexities of the immigration laws, which are rivaled only by tax law.[4] Judges also report spending only seven minutes on average to decide a case.[5] Additionally, because the Department of Justice (DOJ) oversees the EOIR, judges belong to the same agency (DOJ) that represents the government in removal cases, [6] the process of deporting an immigrant back to his/ her home country. Some argue that this creates a conflict of interest.

As a result, research shows that immigration judges suffer higher burnout rates than prison wardens and doctors,[7] and that they have psychological issues such as depression and stress.[8]

The court’s systematic problems overload immigration judges and undermine both the government and the immigration justice system. One immigration judge said that it is “like holding death penalty cases in traffic court.”[9] Judges do not have the time to consciously reflect on each case before making a decision for deportation, which often means life or death for immigrants escaping violence back home. Judge Posner, referring to the problem, said that some decisions made by immigration judges are “arbitrary, unreasoned, irrational, inconsistent, and uniformed.”[10]

Additionally, hearing delays keep applicants with meritorious claims in limbo, while also keeping those with inevitable deportations in the country for longer periods of time. And because the government recently prioritized unaccompanied children–children under the age of 18 traveling without their parents or an adult—hearings, waiting times continue to grow. The immigration court system has struggled to handle the large number of unaccompanied children who have recently entered, causing the system to further break down. For example, in many cases judges are ordering the deportation of children who never received proper notice for a hearing date.[11]

The deep-seated issues in our immigration system are a difficult problem to fix.

However, to give the EOIR more independence, Congress should separate it from the Department of Justice, and make it an independent Article 1 court like the tax or bankruptcy courts. As an independent organization, the EOIR will be able to set it’s own priorities and policies, and it will be able to maintain the level of impartiality that is expected from judges. Congress should also allocate enough funding to hire more judges, so that the judges can have the necessary time to keep up with the immigration laws and to deliberate the issues thoroughly, making the process as just as possible.

[1] See Executive Office for Immigration Review, U.S. Dep’t of Justice, http://www.justice.gov/eoir (last visited Oct. 8, 2015)

[2] See Executive Office for Immigration Review, Office of The Chief Immigration Judge, U.S. Dep’t of Justice, http://www.justice.gov/eoir/office-of-the-chief-immigration-judge (last visited Oct. 9, 2015).

[3] See Empty Benches, Am. Immigr. Council (May 21, 2015), http://www.immigrationpolicy.org/just-facts/empty-benches-underfunding-immigration-courts-undermines-justice

[4] See Bennett L. Gershman, How Immigration Courts Contaminate American Justice, Huffington Post (Jan. 6, 2012), http://www.huffingtonpost.com/bennett-l-gershman/how-immigration-courts-co_b_1187353.html.

[5] Empty Benches, supra note 3

[6] Fatma Marouf, Implicit Bias and Immigration Courts, 45 New Eng. L. Rev. 417, 428-29.

[7] Molly Hennessy-Fiske, As Immigration Judges’ Working Conditions Worsen, More may Choose Retirement, L.A. Times (Aug. 18, 2015), http://www.latimes.com/nation/la-na-immigration-judges-20150818-story.html

[8] Marouf, supra note, at 435.

[9] Julia Preston, Lawyers Back Creating New Immigration Courts, N.Y. Times (Feb. 8, 2010), http://www.nytimes.com/2010/02/09/us/09immig.html?_r=0

[10] Marouf, supra note 7, at 419.

[11] Richard Gonzales, Immigration Courts ‘Operating in Crisis Mode’ Judges Say, Nat’l Pub. Radio (Feb. 23, 2015), http://www.npr.org/2015/02/23/387825094/immigration-courts-operating-in-crisis-mode-judges-say

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