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Jason Dzubow on Political Asylum

Congressional Hearing on EOIR

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On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR).  The hearing was called by Chairwoman Zoe Lofgren (D-CA) as part of a long-running effort to understand why the Immigration Courts and Board of Immigration Appeals (BIA) are as backlogged, inefficient, and overwhelmed as they are. 

  Where the magic happens.

While ranking member Steve King (R-IA) continued his crusade to find out what "really happened" in the asylum case of President Obama's aunt, the rest of the Subcommittee and witnesses got straight to the crux of EOIR's problems:  lack of resources, insufficient staffing and training of immigration judges, and a complete disconnect between EOIR's capacity to adjudicate cases and ICE's skyrocketing enforcement efforts.   

First up was Juan Osuna, former Chairman of the BIA and current Associate Deputy Attorney General at the Department of Justice.  As the DOJ representative before the Subcommittee, he was obliged to highlight the positive changes made during the Obama Administration's stewardship of EOIR.  These efforts include the proposed hiring of 47 new immigration judges by the end of 2010, making the complaint process against IJs more transparent, improving the training regime for IJs, and having "meetings" with ICE to express EOIR and DOJ's discontent with the massive number of immigration court cases being initiated by ICE right now. 

Mr. Osuna is right to be concerned about the astonishing increase in cases before the immigration courts.  He testified that there are a record 275,000 pending matters before EOIR.  Coupled with the decline of IJs actually hearing cases, this has resulted in an average wait-time of 439 days for a case to go to trial.  That's right--the average person who has a case in immigration court has to wait over a year for a hearing on the merits of his or her claim.  Meanwhile, armed with a gargantuan budget and an enforcement mandate, ICE keeps arresting, detaining, and issuing "notices to appear" to as many noncitizens as it possibly can.  EOIR has no control over this and clearly isn't keeping up.   

As Representative Pedro Pierluisi (D-PR) pointed out, the overwhelming caseload and lack of support is creating a great deal of strain on immigration judges themselves.  Witness and Immigration Judge Dana Marks (also President of the National Association of Immigration Judges), noted that the average Federal district court judge handles 400 cases per year and has three law clerks to assist him.  The average immigration judge completes 1500 cases per year and gets ¼ of one law clerk.  Further, TRAC Immigration reports have indicated that an IJ gets an average of only 70 minutes to hear an immigration case.  Practically speaking, that means that in just over an hour, an IJ has to decide whether the law requires him to split up a family, keep someone detained, or send someone back to his home country to face persecution.  And the DOJ wonders why it has a hard time finding qualified, experienced immigration judges? 

The laundry list of problems raised at the hearing could go on for pages, so I'll stop here.  I think it is clear enough that as a starting point, EOIR needs more resources if ICE is going to continue to funnel record numbers of people into deportation proceedings.  For other suggestions on how to reform the immigration court system, I recommend reading a recent ABA report called "Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases." You can read the full ABA report here.

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