Sources include: the Attorney General's original August 2006 announcement of 22 improvements for the Executive Office for Immigration Review (EOIR); the March 2007 memorandum by the EOIR Director at the time, describing the accomplishments and future plans for implementing these improvements; the Department of Justice budget requests and Congressional action on these; a wide range of information published by the federal government, including by the EOIR and the Office of Personnel Management (OPM); EOIR responses to TRAC questions; internal files of the EOIR and OPM; and interviews with knowledgeable individuals in the immigration community and with the president and vice-president of the National Association of Immigration Judges.

Staffing Numbers. Statistics on the number of Immigration Court judges, judicial law clerks, and Border Patrol agents were compiled by TRAC from OPM files. Those on the payroll at the end of each fiscal year were used for Immigration Judge and agent counts; similar quarterly data was used for counting law clerks to better isolate their actual staffing levels. The EOIR reports that after law clerks pass their bar exams they are reclassified under the general attorney occupational series, although their job duties are unchanged. TRAC counts include EOIR personnel that are formally under the "law clerk" occupational series (0904) as well as those who the EOIR has upgraded to the "general attorney" occupational series (0905) after passage of their bar exam.

Because OPM is responsible for maintaining the official numbers on federal civilian employment and that agency carries out many reliability and validity checks to ensure the accuracy and completeness of their records, TRAC used this data for the counts it reports. The turnover statistics were also compiled by TRAC from the OPM's data on Immigration Judge separations. These statistics count separations from the EOIR either by transfer to another federal agency or through leaving federal employment. Counts for 2008 (current as of July 2) for Immigration Judges come from the EOIR's website and from EOIR responses to questions TRAC submitted. Information from the EOIR was used since OPM data for this most recent period are not yet available.

Immigration judges are further categorized as either those with a regular caseload — "sitting judges" — or those with administrative duties. This further division was necessary because Immigration Judges are formally distinguished by the particular pay plan under which they are compensated, and not by their actual job assignment. TRAC therefore examined each job assignment, and if there was any question, examined the caseload the Immigration Judge actually handled using the EOIR's internal files. Each Immigration Judge assigned to any of the Immigration Courts outside of the EOIR headquarters was assumed to be a regular ("sitting") judge. The only exception was for Assistant Chief Immigration Judges (ACIJs). Currently eleven in number, each of ten of these ACIJs is assigned to as many as eight separate Immigration Courts for which they have special supervisory responsibility.

Up until the AG's announcement in 2006, ACIJs were based at the EOIR headquarters. As part of the "improvements" implemented, six of the ACIJs are now based in the field at one of the several Immigration Courts for which they have supervisory responsibility. Classification for these ACIJs was based upon the actual caseload each handled.

In addition, since 2004 one to four IJs have been assigned to a new Headquarters Immigration Court (HQIC) at the EOIR headquarters in Falls Church, Virginia. This court does not handle cases directly. However the EOIR reports that, through special arrangement involving video-conferencing, an IJ with the special HQIJ assignment can be asked by one of the regular Immigration Courts out in the field to handle some of their cases. Again, TRAC classified these IJs on the basis of the actual caseload each handled.

TRAC found that while ACIJs do handle some cases, ACIJ job assignments were primarily administrative in nature. TRAC found relatively small numbers of cases handled by these ACIJs, as compared to size of caseloads handled by other judges in the cities they were based. Similarly, HQIJs currently were found to decide relatively few cases compared with caseloads handled by judges assigned to regular Immigration Courts and therefore were not classified as handling regular caseloads.¹

Immigration Court Workloads. The primary data source was the Executive Office for Immigration Review's (EOIR's) internal data, supplemented by statistics published in EOIR annual statistical reports. Through a detailed examination of the EOIR data, TRAC was able to document over a long period of time the month-by-month counts of deportation orders sought by the Department of Homeland Security (DHS) and its predecessor agency, the Immigration and Naturalization Service (INS).

Note: Legal terminology has changed over time when referring to deportation, and we use "deportation" in a generic sense, whether legally labeled as removal, deportation, or expulsion based upon inadmissibility grounds. Deportation, unlike "voluntary departure," carries with it penalties barring the alien from re-entering the United States for a term of years, sometimes for life.

Using the charge-by-charge details on each of the individual EOIR records, TRAC classified each case to document the underlying reasons why the government — DHS, INS, etc. — was seeking the individual deportation orders. An earlier TRAC report describes the methodology used in more detail. This same methodology was used by TRAC for a new shipment of data received from the EOIR which covers all activity recorded through June 13, 2008. A proceeding was classified under a "EWI charge" if the only charge recorded was for entering the United States without inspection. Information was also recorded on the detention status of each alien which indicated whether the alien had never been detained, had been detained and later released, or had been detained and never released up until the disposition of his or her case.

While the Immigration Courts are the only courts with jurisdiction to decide deportation matters, over the past decade Congress has moved to give the DHS (and its predecessor the INS) new powers that in certain circumstances allow it to deport someone without bringing a charge before the Immigration Courts. One such procedure, authorized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, affects some individuals who have been classified as "aggravated felons" (for definition, see earlier TRAC Report, Aggravated Felonies and Deportation). In FY 2006, a total of 10,448 aggravated felons were handled in Immigration Court versus 12,617 removed by DHS without prior court action. For more details see earlier TRAC Report, New Data on the Processing of Aggravated Felons.

A second procedure outside the Immigration Courts involves what is known as the "expedited removal process" (for discussion, see earlier TRAC report, Controlling the Borders). In FY 2006, the latest year for which data are available, there were 110,147 expedited removals reported. Most originally took at ports of entry along the southwest border. Since 2005 the procedure can be used between ports of entry along the border. The Immigration Yearbook for 2006 states that DHS mostly "used these procedures with aliens arriving at ports of entry who illegally attempted to gain admission by fraud or misrepresentation, with no entry documents, or by using counterfeit, altered, or otherwise fraudulent or improper documents." However, the expanded authority given to the Border Patrol since 2005 may mean that this authority is being increasingly used for aliens entering without inspection (EWI). In that event, these aliens are not included in either EOIR data or in Immigration Court workloads.

Time Requirements for Handling Workload. Unlike the Administrative Office for the United States Courts (AOUSC), which has developed a methodology for classifying and weighting cases according to their complexity and the judge's time required for handling them, and which uses this methodology to help determine appropriate district judge staffing levels, neither the EOIR nor the Department of Justice appears to have any formal methodology for determining what adequate staffing levels are (or would be) for handling the workload of each Immigration Court.

In this regard the EOIR is not alone, for the task is indeed a challenging one. For example, the Executive Office for United States Attorneys, also within the Justice Department, has on several occasions attempted to measure staffing workload needs based upon the composition and number of cases handled in its 94 U.S. Attorney offices but did not come up with an adequate system it felt it could adopt.

TRAC's tabulation accompanying this report of maximum minutes available for handling each matter received by Immigration Courts does not in any way attempt to assess what an adequate amount of Immigration Judge's time might be. It simply describes the maximum average number of minutes available for handling each matter received each year by the Immigration Courts. It is calculated by taking the number of sitting judges and assumes that the maximum time available per judge is 2,000 hours (52 weeks - 2 weeks for federal holidays) x 40 hours/week. After converting this to minutes by multiplying by 60 and by the number of sitting judges, the sum is divided by the number of matters received as reported each year in the EOIR's annual statistical report.

As noted in the accompanying report, this calculation provides at best a maximum level of average 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. Further, because of the many factors that influence the amount of time required to adequately deal with each matter brought before an Immigration Judge, it should be acknowledged that simple case counts of matters received present a highly imperfect measure of how workload demands have changed over time.