Quality vs Quantity: How Does Sitting on the Dedicated Docket Impact the Judging Process?

Published Nov 16, 2022

The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This has been well documented, including by the annual judge-by-judge reports that TRAC has compiled over the years. The latest addition to this series, updated through FY 2022, documents continuing wide differences. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, judge denial rates ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.

These are just a few examples from these 639 new reports covering asylum judging at all 65 Immigration Courts. These reports continue to be compiled by TRAC from the official court records on each decided asylum case. Reports are now updated to include data through FY 2022. [1]

A Natural Experiment Is Underway

Going forward, a changing environment is underway facing both asylum seekers and judges hearing asylum cases. The Immigration Court backlog of asylum cases waiting for decision has climbed to 771,236 as of the end of October 2022, with increasing caseloads for judges. [2] Wait times for many asylum seekers now stretch out for years, while others go to the head of the line through recent Biden administration initiatives such as the Dedicated Docket and the Asylum Officer Rule.

These new asylum initiatives are creating two very different streams of asylum processing queues. One queue is governed largely by long existing procedures, the second “fast track” queue is replete with deadlines designed to expedite hearings and the decision process.

During FY 2022, Immigration Judges decided on their merits 51,607 asylum cases in total. Differences in the outcomes emerging from these two distinct asylum queues is now mounting). [3] See Figure 1.

So has their relative growth in volume. Between the first three months of FY 2022 (Oct-Dec 2021) and the last three months (July-Sept 2022), the number of asylum cases concluded within 3 to 18 months has grown by 1,467 percent, rising from 431 to 6,755 decided cases. Cases completed in between 18 – 36 months, in contrast, have actually fallen – down by 55 percent. Those in the traditional queue taking over 36 months have grown by 78 percent. See Table 1.

Quality of Judge Decisions With Rocket Dockets

Deciding asylum cases quickly means that a given judge can theoretically decide a larger number of cases during a year. While a high volume of decisions doesn’t necessarily translate into poor quality decisions,[4] not having sufficient time to ensure due process is adequately safeguarded obviously can. As former Immigration Judge Dana Leigh Marks back in 2009 noted: immigration judges are called upon to make decisions that can have life and death consequences, but in courtrooms that resemble traffic court settings.[5] If this was already a problem in the past, are judges under pressure to make too hasty judgments with rocket dockets?

Research on how the quality of asylum decisions — as distinct from just outcome — is affected by these new initiatives to accelerate the pace of decision making is sparse. Little beyond anecdotal reports exist about how Immigration Judges are coping with these accelerated dockets. More attention has been given to how rocket dockets impact families seeking asylum and their attorneys’ ability to adequately prepare their cases.[6]

Little attention has been given to their impact on the process of judging asylum cases faced by those assigned to this specialized docket.

There are now 37 judges who during FY 2022 have made at least 100 dedicated docket asylum decisions. We can see in Table 2 that judge-by-judge asylum grant and denial rates for these cases again vary markedly. The range includes Judge Thomas Ayze who denied 97 percent of asylum seekers appearing before him on the Dedicated Docket in Miami to a denial rate half that level (47%) of Judge Lily Hsu on the opposite coast assigned to the Los Angeles Dedicated Docket.

Asylum denial rates on the Dedicated Docket in San Francisco ranged from a low of 31 percent for Judge Steven Kirchner to a high of 78 percent for Judge Ravit Halperin – both handling the same Dedicated Docket workload. For other courts the judge-by-judge differences while still usually significant were not as extreme.

Impact of Dedicated Dockets on the Judging Process: More Research Needed

While sufficient time has passed to begin examining how judge-to-judge asylum denial rates vary within Dedicated Docket hearing locations, it is a more challenging proposition to try to isolate the impact of expedited proceedings on the judging process itself. Thus far, only three of these 37 judges made 100 asylum decisions in non-Dedicated Dockets that might allow comparisons. In two of these cases denial rates made by the same judge were higher on the Dedicated Docket than on the non-Dedicated Docket on which they also served. [7] The reverse was true for the remaining judge. [8] And simple comparisons like this don’t suffice. A myriad of other factors obviously impact the potential “worthiness” of the cases heard by the same judge in these two different settings.

But as the country heads full throttle into expediting asylum processes, how this is working needs continuing attention and discussion. Missing often in these debates are the views from Immigration Judges currently assigned to hear these cases, and on the impact this environment is having on them and the judging process itself. [9]

Attention is needed from all sides, including by the Biden administration, on how these initiatives are transforming the asylum landscape in the U.S. Research is sorely needed on how rocket dockets are altering how hearings are being conducted, along with why differences in outcomes now emerging from these two separate asylum queues are occurring.