|(24 Jan 2024)
There is widespread agreement that the Immigration Court has far too few judges and support staff to
handle newly arriving cases let alone process their backlog of cases which has been piling up for
decades. While 1,490,480 cases were filed last year, the Court backlog at the end of December 2023 has
grown to 3,287,058 cases.
More judges alone won’t be sufficient. There is another serious shortage: too few immigration
attorneys. As a result, the proportion of immigrants able to find an attorney to represent them in
removal proceedings has dropped precipitously. Five years ago, noncitizens had found attorneys in 65
percent of all pending cases in the Court’s backlog. Today, this proportion has dropped to just 30
percent. Yet immigration attorneys are an important ingredient for assuring efficient, not just fair, court proceedings since attorneys play a vital role in alleviating a variety of administrative
delays and facilitating a more functional legal process. If an immigrant cannot afford an attorney,
the civil Immigration Court system does not provide one as the criminal courts do for indigent
In fact, skilled immigration attorneys are needed to present the evidence and arguments on both sides.
Presenting the government’s case is the responsibility of attorneys employed by Immigration and Custom
Enforcement (ICE). Recently, citing budget constraints leading to an attorney shortage, ICE has
adopted the practice of not sending an attorney to many hearings. Yet the agency may seek to reserve
its right to appeal if ICE doesn’t like the decision the Court reaches in their absence, an end result
which only adds to the burdens faced by the Court and the immigrant in the case.
There is vast variation in representation rates across Courts headquartered in different states. In
the current backlog, representation rates ranged from a high of 56 percent in Hawaii down to a low of
just 14 percent in Courts based in Colorado.
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