|Improving the Immigration Courts:
Effort to Hire More Judges Falls Short
Two years ago, on August 9, 2006, then Attorney General Alberto Gonzales proposed 22 specific steps that were "needed to improve the performance and the quality" of the Immigration Courts in the wake of a comprehensive review conducted by his office. The Attorney General's proposals followed a long string of sharply critical decisions from federal appellate level judges, as well as a series of studies by the San Jose Mercury News, the Transactional Records Access Clearinghouse (TRAC) and others documenting inexplicable disparities in how individual judges were deciding requests for asylum.
One of Gonzales' key proposals was to seek budget increases to hire more Immigration Judges and judicial law clerks, aiming "to give the Immigration Courts the resources needed to execute their duties appropriately."
The proposal reflected the widespread acknowledgement that the small number of Immigration Judges face a crushing workload. For example, in an August 10, 2007, speech addressing criticisms of the Immigration Court system, Federal Ninth Circuit Court of Appeals Judge Carlos T. Bea acknowledged the severity of the resources problem. "Last year, [Immigration Judges] decided over 350,000 matters, or roughly 1,520 matters per judge ... Of course the opinions are not as detailed as we appellate court judge would like, how could they be? Of course they don't have time to review all the documents in the record ... I think we would see fewer appeals if Immigration Judges were given the resources necessary to do a detailed, thorough, thoughtful job in the first place."
This report, the first of a series funded by a two-year grant from the Carnegie Foundation to assess the impact of these 22 proposed changes, examines the funding and staffing of Immigration Judges and law clerks in the Immigration Courts since Mr. Gonzales' 2006 announcement. It is based on a detailed analysis of data from the Office of Personnel Management, the Executive Office for Immigration Review (EOIR) and the Department of Justice (DOJ).
In summary, TRAC's analysis found that there has been no actual increase in the number of funded Immigration Judge positions since the Attorney General's proposals were announced, although some temporary positions that were first funded in 2006 prior to the Attorney General's announcement were subsequently made permanent. In addition, the EOIR acknowledges that as of July 2008 there are eight fewer Immigration Judges employed than there were back in 2006 at the time the Attorney General announced his plan for increased staffing. One surprising reason the number of judges have declined is that as of July 5 the Justice Department had left 28 positions — 11% of the immigration bench — unfilled.
The net result is that as the total number of matters handled by the Immigration Courts has increased over the last decade, today's Immigration Judges have less time to handle a case received by the court than they did ten years ago.
On the positive side, the Immigration Courts have seen some increase in judicial law clerks, a legal position important to the operation of any court. However, as of July 2008, according to the EOIR there are still over 4 Immigration Judges for every law clerk employed.
The EOIR, an agency within the Department of Justice, is responsible for interpreting and administering the nation's immigration laws. The judges in this special court system are employees of the Department of Justice, are appointed by the Attorney General and, unlike federal district court judges who are part of the judicial branch, do not have tenure.
In FY 2007 these judges handled over 328,000 immigration cases on a wide range of matters. Under the law, their key responsibilities include deciding whether individual requests for asylum will be approved or rejected, whether individuals will be deported or not, and making other important immigration-related rulings. The resulting judgments can involve serious and sometimes life-threatening changes for those whose cases are being dealt with.
As indicated above, a significant number of Court of Appeals decisions criticizing the practices of the Immigration Courts and statistical studies documenting vast processing disparities led Mr. Gonzales to commission a special study of the problems and then, in August of 2006, to order actions to resolve them.
In a statement made available along with the Attorney General's press release, the Justice Department said that Mr. Gonzales had among other actions directed his deputy to promptly prepare a plan to seek the budget increases required for "the hiring of more Immigration Judges and judicial law clerks" and other court employees.
The Attorney General announced on August 9, 2006, that the EOIR would seek additional resources to hire Immigration Judges and other personnel beginning with the FY 2008 budget request. The EOIR did request additional funding for Immigration Judges in FY 2008, but Congress did not appropriate the funds. In the same FY 2008 appropriation, the EOIR also requested, and Congress subsequently appropriated, permanent funding for 20 temporary Immigration Judge positions that had been funded in FY 2006, prior to the Attorney General's announcement. The EOIR did not seek funding for additional positions in FY 2009.
TRAC's review of DOJ budget requests for the past decade makes it clear that staff resources, particularly the number of Immigration Judges, have long been an issue. DOJ requested additional funding to address anticipated increases in caseload in nine out of the past 10 years. In five of those years, the budget requests specify that the funding would be used in part to hire additional Immigration Judges.
For example the 1999 budget request for FY 2000 cites Immigration and Naturalization Service (INS) initiatives that will increase caseloads as justification for requesting five additional judges. In the 2001 request for FY 2002, the justification for eight additional judges was this: "Critical to the success of these INS initiatives will be the ability of EOIR to process the resulting Immigration Judge and appellate caseload in a timely fashion."
Mr. Gonzales' 2006 directive stated that "With its workload having increased significantly in recent years and still further increases in caseload being anticipated, EOIR has demonstrated a need for additional resources." The Attorney General stated that DOJ would seek budget increases, beginning in FY 2008, for "the hiring of more Immigration Judges and judicial law clerks, focusing on those Immigration Courts where the need is greatest."
At the time this directive was issued, the DOJ had already received temporary funding for 20 new Immigration Judges through the 2006 War Supplemental. This funding was due to expire at the end of FY 2007. The request for FY 2007 also included funding for 20 judge positions.
In March 2007, seven months after the Attorney General's news conference, Kevin D. Rooney, then director of the EOIR, issued an updated statement about the 22 measures that included a more extensive discussion of the need for additional staff. The administration, Mr. Rooney said, "has sought budget increases which, if approved by Congress, would add 240 new positions to the EOIR during the next two years (including 40 Immigration Judges, 40 judicial law clerks and 20 Board staff attorneys.)" Presumably he was referring to the 20 temporary judge positions already funded and an additional 20 requested for FY 2008.
In a written response to TRAC's findings, the EOIR states that the agency did not request funding for additional staff in FY 2009 because Congress appeared to be prepared to appropriate the requested FY 2008 staff funding increase at the time the budget was being developed. In reviewing the FY 2009 budget request actually submitted by DOJ, however, TRAC notes that budget request does not reflect such an expectation, omitting the cost of the proposed FY 2008 staff increase from the FY 2008 obligations.
In sum, because Congress did not appropriate funding for new positions requested in FY 2008, and because the DOJ did not request funding for additional positions in FY 2009, the result is that no new Immigration Judge positions have been funded since the Attorney General's 2006 directive. As a result, for whatever reason, this part of the overall effort to improve the courts has fallen short of the stated goal.
As of July 2008, as noted above, the actual number of Immigration Judges available to decide cases has declined by 8 since the Attorney General announced efforts to increase judge staffing.
Looked at over the last decade, the number of sitting Immigration Court judges now remains fewer than the figure was even five years ago, and only slightly higher than a decade ago. Sitting judges, as shown in Figure 1, count judges assigned a regular caseload. The accompanying table also presents the underlying counts for all judges including those with administrative or other specialized responsibilities (see About the Data).
As shown in the accompanying table to Figure 1, in FY 1998 there were a total of 202 sitting judges throughout the United States. The annual count increased somewhat erratically until FY 2003 when it reached a peak of 218 judges. After a two-year decline, this modest peak was again achieved in FY 2006. But in FY 2007 and FY 2008 the number dropped to 205 and 210, only slightly above the total in 1998.
As shown in Figure 2 and the accompanying table, during the past five years personnel records indicate that a total of 57 Immigration Judges retired or left the bench, an annual turnover rate averaging 5 percent.
Thus, TRAC's analysis indicates this surprising decline in the number of sitting judges is the natural outcome of attrition (retirements, deaths, resignations, transfers, etc.) combined with the EOIR's failure to fill open slots. On this point, responding to a number of questions that TRAC had posed to it, the EOIR on July 14 limited itself in a written statement to saying only that 27 current vacancies "are in the process of being filled." On July 24 it updated this number to 28 unfilled positions.
The EOIR's large number of unfilled positions is certainly due in large part to the illegal political hiring of immigration judges that took place from the Spring of 2004 until December 2006. The Department of Justice's Office of the Inspector General released a report on July 28, 2008 confirming that the DOJ used an illegal process to exclusively appoint immigration judges who had been screened for their political or ideological affiliations during that time. "One of the results of this tightly controlled selection process [by DOJ political appointees] was that it left numerous IJ vacancies unfilled for long periods of time when they could not find enough candidates, even when EOIR pleaded for more judges and told the OAG repeatedly that EOIR's mission was being compromised by the shortage of IJs." The report also found that a hiring freeze went into effect in January, 2007, after DOJ civil division attorneys investigated the immigration hiring process, and a new hiring process was implemented on April 2, 2007. The report also quotes EOIR Director Kevin Ohlson as saying that "candidates have been selected, but not yet appointed, for 21 of the remaining 27 vacancies."
As noted above, the proposal to seek appropriations to substantially increase the number of Immigration Judges was one of several of the administration's staffing proposals. A second pledge was to request funds for the addition of 40 new judicial law clerks. It is widely acknowledged that the 200-plus judges deciding cases in these courts have never had a sufficient number of law clerks to handle the often-complex matters that confront them on a daily basis.
Law clerks are hired each year for temporary one-to-two year positions from recent law school graduates through the Attorney General's Honors Program. TRAC's analysis of Office of Personnel Management data indicate that there were around 35 law clerks employed during FY 2006 at the time of the Attorney General's announced plan to hire additional law clerks. This has increased to 50 employed today.
Figure 3 presents figures on law clerks on board on a quarterly basis. According to the EOIR, law clerk terms currently run from September to September, so that there is some overlap in September between clerks being brought onboard, and clerks that are just leaving. TRAC therefore used quarterly data to isolate this temporary artificial jump in numbers on the payroll at the end of September from the actual levels that exist through the rest of the months of the year.
According to the EOIR, two law clerks currently are assigned to the agency's headquarters while the remaining 48 law clerks are posted at Immigration Courts throughout the country. This means that on average there are 4.4 sitting Immigration Judges per law clerk. But in the field, the actual availability of even a shared law clerk is quite variable from one court to the next. This is due in large part to the fact that there are simply more Immigration Courts than there are available law clerks, plus the wide ranging size of existing Immigration Courts. For example, courts vary from single-judge courts all the way up to very large courts in New York City, Los Angeles, San Francisco and Miami with 15 to 24 sitting Immigration Judges. One practical result is that at least 14 Immigration Courts have no law clerk assigned to them so that many judges still have not even a shared law clerk at their location.
Two conclusions can be drawn from this data. First, providing law clerks to assist the Immigration Judges has never been a high priority concern of either the Bush Administration or Congress. Second, while the data show that the number of clerks has risen somewhat in the last few years, the increases that so far have been achieved are well below the 40 that Mr. Rooney said the administration hoped to find funding for.
In contemplating the broad Bush Administration promises to enhance the overall performance of the Immigration Court, it is hard to overstate the critical importance of resolving the staffing situation. While many of the other 22 promises are significant, virtually all objective observers — Justice Department officials, appeals court judges, independent scholars, Congressional staff members and others – agree that as presently organized the small and currently declining number of Immigration Judges are now being overwhelmed by the flood of matters that they are asked to rule on while following a complex array of legal and procedural requirements.
What Is Adequate?
According to data from the EOIR, the total "matters received" by the Immigration Courts in FY 2007 (334,607) was somewhat higher than it was in 1998 (282,348). Although this annual count has fluctuated during the last decade — sometimes up and sometimes down — the counts for the most recent period show that the number of matters recorded in FY 2007 was slightly lower than they were in FY 2005 and 2006. See Figure 4.
In proposing the 22 reforms, the Attorney General said the Immigration Courts required adequate resources "to execute their duties appropriately." But Mr. Gonzales did not define what he and the Justice Department meant by the "appropriate" execution of the multiple responsibilities of the courts. And there is no public evidence that the Justice Department has sought to systematically assess the resources that would be required to operate a court that was providing "adequate" services.
What is clear, however, is that a large number of different forces which affect the workload and the responsibilities of the Immigration Judges are now converging on the courts. The complex inter-relationships of these forces are not always easy to understand. Here are some illustrations.
The Impact of the Border Patrol on Workload
The largest segment of proceedings filed in Immigration Courts over the past decade involves entry without inspection (EWI), the charge typically brought against aliens for attempts to slip across the border rather than entering the U.S. at regular ports of entry. See earlier TRAC report. In FY 1998 those charged solely with an EWI offense made up 42% of court proceedings. During FY 2006 it had grown to 62%. While EWI cases have fallen some since this peak, they were still averaging 54% of the court's workload during the first eight months of FY 2008. In terms of raw numbers, aliens brought before the Immigration Court on EWI charges have been the fastest growing segment — up over 55 percent from FY 1998 to 2008. See Figure 5.
The principal source for these filings is from arrests by the Border Patrol along the southwest border. While Justice Department and Congress funneled more and more dollars into the hiring of more and more Border Patrol agents, we have seen little change in the number of Immigration Judges. During the last decade, the size of the Border Patrol has steadily increased, nearly doubling from 7,890 in FY 1998 to 14,837 in FY 2007. The real dimensions of this reality can be clearly seen when the number of Border Patrol agents are examined on a year-to-year basis in relation to the number of sitting Immigration Court judges. See Figure 6 and accompanying table.
In 1998 the data show there were just fewer than 40 agents per sitting judge. By FY 2007, however, there were over 70 agents per judge.
However, there is not a simple relationship between the number of Border Patrol agents and Immigration Court workload. First, Border Patrol staffing levels often show a surprising lack of association with the number of apprehensions. This was demonstrated by this figure from an earlier TRAC study which illustrated Border Patrol staffing and apprehension levels in each of the sectors along the southwest border.
If the agents, after an alien is apprehended, decide to bring formal charges they can go this direction in several ways. One route is through the Immigration Courts. A second route is to refer the detainee for prosecution in U.S. District Courts since illegal entry is a criminal misdemeanor (petty offense) under 8 U.S.C. 1325. There has been a huge surge in such prosecutions in the last few months under a Bush Administration effort called Operation Streamline (see TRAC study). And finally, under a 2005 administrative directive, Border Patrol agents were granted greatly expanded authority to issue deportation orders on their own initiative, yet another way in which the Immigration Courts are bypassed (see About the Data).
Thus, changes in Border Patrol policies, wholly apart from the level or staffing or number of apprehensions, often play a large role in driving how many EWI charges are filed in Immigration Courts. As shown earlier in Figure 5, around September 2005 there was a large spike in Immigration Court proceedings driven almost entirely by a jump in aliens charged with entry without inspection. Numbers since this peak have fallen off, although as seen in the accompanying table remain above those levels of even five years ago.
Detention Beds and Workload
Another factor affecting the workload of the Immigration Judges is the availability of detention beds. Since 2005, DHS has obtained funds from Congress dramatically boosting the number of detention beds available. For example, by FY 2007 there had been almost a 50% increase in beds, and with the 2009 budget request, DHS expects to bring the total to 33,000 — a 78 percent increase over the 2005 level of 18,500 beds.
The availability of detention beds affects the workload of the Immigration Courts in several ways. Figure 7 shows a month by month time series of court proceeding completions over the last decade, broken down by whether the alien was detained or not. The huge jump in volume that occurred around the fall of 2005 involved aliens who were not detained, presumably due to a lack of available detention beds to accommodate this large increase in the number of aliens being charged. As the EOIR and the GAO have reported, while the volume of court completions were sharply up, a significant proportion were for cases in which the non-detained alien failed to show up for the court hearing. When the alien fails to appear, Immigration Judges still have the authority to order the deportation of the alien — referred to as an "in absentia" order. EOIR officials have acknowledged that "in absentia cases require less time to complete because there is limited or no conflicting evidence for the court to hear and review when the immigrant does not appear to respond to the charge of removability."
The GAO also noted that "[a]ccording to EOIR, there was an increase in the number of DHS charging documents that did not have the address of the immigrant, which, in turn, resulted in an in absentia decision. By regulation, if the immigrant fails to provide his or her address as required by law, actual written notice is not required for an Immigration Judge to proceed with an in absentia hearing." Because this jump in cases, as shown earlier in Figure 5, was often for aliens picked up by the Border Patrol for trying to illegally slip across the border ("EWI" cases), it is not surprising that many individuals would not have a local address to provide DHS agents if they were not detained.
Another way that the availability of detention beds affects court workload is that if an alien is detained, he or she may file a motion with the court asking to be released on bond. These bond hearings add to the workload handled by Immigration Judges. The table accompanying Figure 7 provide a breakdown of the numbers of detained aliens who are later released. With the growth in the number of detained aliens charged in Immigration Court by FY 2007, the EOIR reported that the number of bond hearings completed was also up 42 percent from less than 30 thousand (29,735) during FY 2006 to over 42 thousand (42,171) during FY 2007.
Declining Time Available Per Matter Received
Because of the wide range of factors that can influence the time required for adequate processing of a case, simple counts of "matters received" are a highly imperfect measure of how workload demands have changed over time. But because very few believe that immigration case are becoming simpler and less time consuming to handle, tracking the annual number of "matters received" can be revealing.
When these counts are examined in relation to the number of sitting judges, for example, the data indicate that over the years the pressure on the Immigration Courts has intensified. In FY 2007 Immigration Judges had substantially less time per matter to deal with their workload than in previous years over the past decade.
For example, in both FY 2007 and 2006 Immigration Judges on average only had 74 minutes to deal with each matter received. By comparison, however, the judges had 86, 102, and 98 minutes respectively per matter received during in FY 1998, 1999 and 2000. Except for FY 2005 when a steep jump in receipts occurred, as shown in Figure 8, the average time that Immigration Judges have had to dispose of a case has never been less during the last decade than it is now.
Note that even these figures on available time to process the courts' workload provide an unrealistically high level of minutes per matter since no allowance is made for personal vacation time, sick leave, or other duties and responsibilities not directly related to the processing of individual matters. Thus, these figures over-estimate in practical terms the actual time available.
Improving the quality and performance of any complex organization is an extraordinary challenge requiring action on many different fronts. And the 22-point plan proposed two years ago by the Justice Department and the EOIR covered a range of different proposals that must be carefully examined before a final overall judgment can be rendered. But clearly the provision of an adequate number of judges and law clerks is central to the whole effort. At this point, two years after the announcement of a broad program to make the courts a fairer and more effective institution, the evidence suggests that neither the Bush Administration nor Congress have yet adequately grappled with the staffing component of the overall proposal.