Immigration Court Struggling to Manage Its Expanding Dedicated Docket of Asylum-Seeking Families

During the month of August, the Biden administration stepped up the assignment of asylum-seeking families arriving at the border to the Immigration Court's new "Dedicated Docket" program. As of August 31, 2021, Immigration Court records indicate a total of 16,713 individuals comprising approximately 6,000 families are now assigned to this program[1]. During the month of August alone, a total of 11,847 individuals were added to the Court's docket through this program, or an average of almost 400 individuals each day. This is up considerably from the pace during the second half of July when an average of 140 to 150 individuals per day had been assigned.

But alongside the growing number of asylum-seekers assigned to the new Dedicated Docket, new questions emerge about whether these cases will be completed fairly and within the promised timeline, whether Immigration Judges will be able to manage large Dedicated Docket caseloads, and whether the Court is reliably tracking these cases as promised.

The daily assignments based on the recorded date of their Notice to Appear (NTA)[2]are plotted in Figure 1. As might be expected, there is a pronounced weekly cycle with a significant drop off in assignments on weekends. The red line plots the weekly average daily assignment to smooth out these day-to-day fluctuations.

Figure 1. Assignment of Persons to the Immigration Court's Dedicated Docket, May 28 - August 31, 2021
(Click for larger image)

The Court's Management of its Dedicated Docket

The announced goal of the Dedicated Docket[3]was to speed the hearing and resolution of family cases. A decision target of 300 days after their initial master calendar hearing was set. According to the announcement "Families may qualify if they are apprehended between ports of entry on or after Friday, May 28, 2021, placed in removal proceedings, and enrolled in Alternatives to Detention (ATD)."[4]

But unlike previous attempts in past administrations that set up rocket dockets whose effectiveness as well as fairness had been widely criticized, the Biden administration's announcement of this new program claimed to maintain fairness: "While the goal of this process is to decide cases expeditiously, fairness will not be compromised." And with that goal in mind, the announcement also suggested that immigrants on the Dedicated Docket would receive additional legal support: "EOIR has identified immigration courts...with established communities of legal services providers and available judges to handle the cases."

While EOIR has set up Dedicated Docket hearing locations in eleven cities, cases assigned thus far, however, have been unusually concentrated in just a few cities. As of the end of August half of the 16,713 cases were assigned to New York City and Boston. Boston, the last location assigned to handle asylum-seeking families in this program, had nearly 3,000 cases assigned during August alone. New York City, which was already home to half of Dedicated Docket cases assigned at the end of July, added an additional 3,336 new cases during August. Other Dedicated Docket hearing locations such as Denver, Detroit, El Paso, San Diego and Seattle were assigned many fewer cases during August — ranging from 79 to 391 cases each. See Table 1.

Dedicated Docket Case Assignment and Scheduling

Scheduling individual master hearings has presented challenges with the rapid influx of cases at a number of these Dedicated Docket hearing locations. Overall, half of the currently scheduled initial master hearings are not being held until after mid-November 2021, and fully one in ten are not currently scheduled until mid-February 2022.

In addition, these hearings are largely to be held via video. Only eleven percent of all scheduled hearings are set as in-person hearings. See Table 2.

It also continues to be a relatively small number of judges who are assigned to hear these cases. Six judges now account for nearly two-thirds (63%) of the assigned DD cases. Each of these six judges has already been assigned over a thousand cases just during the first three months of this initiative. See Table 3.

Judge Mario J. Sturla in Boston, as of the end of August 2021, has been assigned the most DD cases for any judge —3,178 cases. Almost all of these DD cases were assigned during the month of August. When these were added to Judge Sturia's existing workload, the judge's total workload rises to 6,896 cases.

On one day, 129 cases (an estimated 46 families) have been assigned to be heard on Judge Sturla's master calendar. Even if the entire eight-hour day was spent hearing these cases, only roughly 10 minutes on average per family would be available. And no doubt many procedural matters, including the need to switch translators to handle the different languages spoken by these asylum seekers, would consume some time during this packed hearing day.

DD Case Tracking Not Yet Fully Implemented

Some basic arrangements are still not in place to properly manage this initiative. A key requirement is that families assigned to this program be reliably tracked. To its credit, the Court did set up a special "DD" flag to be recorded on each case assigned to this program, which, if used consistently, would allow the Court to clearly identify and track Dedicated Docket cases within the Court's database.

Unfortunately, no procedures appear to have been put in place to ensure that cases assigned to the Dedicated Docket actually have this flag recorded in the Court's database system which is relied on to manage the Court's workload.[5] As of the end of August, fully 38 percent of cases assigned to the special hearing locations set up to exclusively handle Dedicated Dockets were not flagged as "DD" cases.[6]

In addition, nothing was apparently set up to reliably track cases as a "family unit." Nor have Dedicated Docket cases involving juveniles been reliably flagged in the system that the Court set up to help ensure more careful monitoring of cases of accompanied and unaccompanied juveniles.

Footnotes

^[1] TRAC found the flag EOIR had assigned to tag cases assigned to the DD process unreliable and therefore used a composite measure that included individuals so flagged along with any other individuals who were assigned to a "DD" special hearing location EOIR has established to process these cases. The court did not release any "family unit" identifier so the estimate of the number of families these individuals represent is an estimate based upon common characteristics including their date of entry, nationality, and reported address inside the U.S. See later discussion regarding "Case Tracking Not Yet Implemented."

^[2] The Notice to Appear (NTA) is a charging document typically issued by the Department of Homeland Security to persons that the agency believes are in the country unlawfully and should be deported. An NTA represents the beginning of the deportation process through the Immigration Courts, and may end in temporary or permanent lawful status, a deportation order, or other legal outcomes.

^[3] A "docket" is an administrative tool that courts use to keep similar types of cases together. Several types of dockets exist in Immigration Court, including, for example, "juvenile dockets" for cases involving minors and "detained dockets" for cases involving people who are being held in immigrant detention at the time of their hearing.

^[4] For additional details, see TRAC's August 17, 2021 report here.

^[5] In a formal Freedom of Information request submitted by TRAC to the Executive Office for Immigration Review (EOIR) noting the unreliability of the recording of the DD flag, TRAC requested any additional data "the EOIR is using to identify such individuals and families." EOIR responded that apart from the DD flag, no other records were located.

^[6] In addition, 143 cases flagged as "DD" cases weren't shown at a Dedicated Docket hearing location.