As the backlog of pending immigration cases grows, Congress and the Department of Justice (DOJ) should take a page from the federal courts and establish a corps of magistrate immigration judges.
A bit of background: Up until the early 1980s, special inquiry officers, or "immigration judges" were employees within the former Immigration and Naturalization Service (INS). In January 1983, Attorney General William French Smith moved the immigration judges and the Board of Immigration Appeals into the newly created Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ), giving the immigration judges independence from the prosecuting authority at the time, the INS.
As the Ninth Circuit has noted: "Immigration Judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress ... and some of them by subdelegation from the Attorney General." Under section 240(a)(1) of the Immigration and Nationality Act (INA), immigration judges are tasked with "conduct[ing] proceedings for deciding the inadmissibility or deportability of an alien", including applications for relief from removal by regulation. Under 8 C.F.R. §§ 1236.1(d), immigration judges also review custody and bond determinations by the Department of Homeland Security (DHS).
Immigration judges' salaries are set by section 371(c)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 309 (1996) at between 70 percent and 92 percent of the next to highest rate of basic pay for the Senior Executive Service. Accordingly, they are paid more than $172,000 per year.
With the swearing-in of 14 new immigration judges on April 10, there are now approximately 316 immigration judges serving in EOIR. Those judges are assigned to 58 different immigration courts throughout the United States. The task facing those judges is enormous. According to the Transaction Records Access Clearinghouse (TRAC), the immigration courts had 542,411 pending cases through February 2017, or approximately 1,716 cases per immigration judge.
On April 11, Attorney General Jeff Sessions announced that he intended to appoint 125 new immigration judges in the next two years to tackle this backlog. Even if each of those judges were brought on board, the backlog did not continue to grow, and no currently serving judges were to retire (a questionable proposition, given the fact that many judges have several years of government service and are approaching retirement age), the backlog would only be reduced to about 1,230 cases per judge.
By and large, immigration judges are veteran lawyers, as the latest group of hires demonstrates. The 14 new judges have between eight and 36 years of legal experience, and as a group have an average of more than 17 years of experience. Most are former attorneys with Immigration and Customs Enforcement (ICE).
Many of the duties of an immigration judge require extensive knowledge of the immigration laws, and those laws can be quite complex. As the Court of Appeals for the Second Circuit has noted:
We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges.
Notably, the Second Circuit issued that decision in 1977, and the INA has, if anything, become more complex over the intervening years.
Immigration judges have to be able to apply criminal provisions from each of the 50 states, one federal district, the Uniform Code of Military Justice, and five territories to the several grounds of removal; discern distinctions in federal and state drug laws; and apply such arcane concepts as "moral turpitude" and "crimes of violence". And that is only in determining the removability of criminal aliens. In adjudicating relief, judges often must assess anticipated hardships to children, determine the intentions of often-unidentified actors, and discern whether an applicant deserves relief in the exercise of "discretion".
Because of the nature and volume of the cases that they handle, immigration judges usually issue their decisions orally. In a case involving a large number of exhibits or complex facts, those decisions can take 45 minutes or more, without the benefit of a written transcript of the proceedings.
Not all of the duties of an immigration judge require the skills of a lawyer with three decades of practice, however.
Immigration court proceedings can be roughly broken into three parts: master calendar hearings, bond hearings, and individual merits hearings on relief from removal.
The master calendar hearing is similar to a criminal arraignment. During this hearing, the judge advises the alien respondent of his or her rights and of the availability of free legal services; gives the alien a legal services list and a copy of appeal rights; and advises the alien of the right to submit and object to evidence, to offer witnesses, and to cross-examine the government's witnesses. The judge next places the alien under oath, and ensures that he or she has received the charging document, called a "notice to appear". If the alien does not have a lawyer, the judge will ask whether the alien wants time to find counsel. If the alien does not want a lawyer, or if the alien is represented, the judge will ask whether the alien wants to plead to the charges of removal. After pleadings are taken, the judge will determine whether the alien is removable.
If the judge determines that an alien appearing pro se is removable, the judge will then question the alien to determine whether the alien is eligible for relief. In the vast majority of cases, removability is conceded, and the alien will either request an order of removal, voluntary departure, or a continuance to file an application for relief. If removal is ordered, the alien can waive or reserve appeal; if appeal is reserved, the alien is given a copy of the appeal form. If the alien denies removability, or the court cannot determine whether the alien is removable based on the pleadings, however, the court will set the case over for briefing or a hearing on removability.
There can be multiple master calendar hearings before a case is ready to be set for a merits hearing.
In cases where the alien is detained by ICE, the alien will usually request release, either on his or her own recognizance or on bond at the first or subsequent master calendar hearings. Bond hearings are informal and off the record, and the main issues for the court are (1) whether the alien is eligible for bond; (2) whether the alien poses a danger to the community; and (3) whether the alien is a flight risk. While eligibility is a legal question, danger and flight are factual questions that the court considers based on the record as a whole.
Only after an alien is given the opportunity to find an attorney, is found to be removable, and has filed an application for relief from removal will the court set the matter over for a hearing on the merits of the alien's application for relief (if any), called an "individual merits" hearing.
Depending on whether the alien speaks English (and if not, the availability and proficiency of the interpreter), master calendar hearings can be long, drawn-out affairs largely consisting of purely ministerial acts. Bond proceedings can also be quite lengthy, as the parties can offer (and the court can consider) any relevant information, including evidence relating to unresolved criminal charges.
The critical questions in bond cases are usually factual: whether specific crimes (such as one or more drunk driving or spousal abuse offenses) indicate that the alien poses a danger to the community; whether a criminal alien is likely to reoffend; and whether, based on the alien's equities, the alien will appear for further proceedings or removal. As to questions of flight risk and danger, it is questionable whether decades of legal practice place the judge in a better position than the average citizen to make a determination.
Master calendar and bond hearings, however, can occupy a significant portion of the judge's docket and time. In fact, according to a September 21, 2015, report by TRAC titled "Ballooning Wait Times for Hearing Dates in Overworked Immigration Courts", 71 percent of the cases in the immigration court backlog were master calendar cases. Anecdotally, it can take six to 12 months for an alien to see an immigration judge for an initial master calendar hearing. Experience shows that a case moves more quickly after it gets before a judge, and quicker scheduling benefits both the alien and ICE: the alien will have a legitimate claim heard more quickly; and shorter delays limit the period of time that a deportable non-detained alien is at large in the United States, and make it more likely that a non-detained alien under a final order of removal will be removed.
Given these facts, the establishment of a magistrate immigration judge corps of less experienced (and lower paid) judges to handle less-complicated immigration court matters would be a cost-effective method of reducing the backlog that the immigration courts are facing.
There is precedent for such judges. Notably, magistrate judges have operated in the federal district courts for almost 50 years. As a white paper prepared for the Federal Bar Association in August 2014 explained:
In the United States District Courts, there are two types of federal judges: United States District Judges (confirmed by the Senate with life tenure); and United States Magistrate Judges (appointed through a merit selection process for renewable, eight year terms).
Although their precise duties may change from district to district, Magistrate Judges often conduct mediations, resolve discovery disputes, and decide a wide variety of motions; determine whether criminal defendants will be detained or released on a bond; appoint counsel for such defendants (and, in the misdemeanor context, hold trials and sentence defendants); and make recommendations regarding whether a party should win a case on summary judgment, whether a Social Security claimant should receive a disability award, whether a habeas petitioner should prevail, and whether a case merits dismissal. When both sides to a civil case consent, Magistrate Judges hear the entire dispute, rule on all motions, and preside at trial.
The duties performed by magistrate judges in the federal district court system are similar to many of the duties performed by immigration judges, especially in the master calendar and bond contexts. In much the same manner as magistrate judges assist U.S. district judges in federal district courts, specially trained DOJ lawyers, designated as "magistrate immigration judges" and paid on the regular GS scale, could handle similar responsibilities in immigration court, freeing up judicial resources and saving the taxpayers money.
Consistent with the responsibilities assumed by magistrate judges, magistrate immigration judges could also handle legal questions and motions up to the merits hearing stage, in addition to assisting the immigration court in master calendar and bond hearings.
For example, aliens applying for cancellation of removal under section 240A(b) of the INA are in certain cases unable to establish at the individual merits hearing that they have been physically present in the United States for a continuous period of not less than 10 years, or that they have a qualifying relative, factual requirements for that relief. In those cases, the immigration judge must summarily deny relief in a matter that may have taken years to schedule. In lieu of this scenario, a magistrate immigration judge could review pending merits hearings, verify that the aliens are prima facie eligible for the relief they seek, and ensure that all necessary evidence has been filed before a case is scheduled with an immigration judge, preserving judicial resources.
Finally, certain other matters that do not require the expertise of an immigration judge would also be appropriate for disposition by magistrate immigration judges. Non-contested applications for relief, applications for relief that do not involve complicated questions of law or significant discretion, and cases involving straightforward questions of law occupy court calendars, but could be handled by specially trained DOJ lawyers, even if they do not have years of legal experience.
If magistrate immigration judges were available to handle less complicated applications for relief and matters involving straightforward questions of law, they would free up immigration judges to focus their specialized skills and attention on more complex or highly contested cases, and matters in which greater discretion in connection with judgment is called for. This would serve two purposes: First, it would eliminate the backlog in immigration courts more quickly. Second, it would allow immigration judges more time and resources to review evidence and issue decisions in the cases that they do handle, thereby deterring fraud and improving the quality of decisions. This, in turn, would limit the likelihood of reversal on appeal, reducing the burden on the federal appeals courts.
Limited legislation would be required to empower the attorney general to establish a corps of magistrate immigration judges, however. Although there are just less than 30 references to the phrase "immigration judge" in the INA, the first one, in section 101(b)(4) of the INA is the most critical. It states:
(b) As used in titles I and II- (4) The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office of Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
This definition does not set any specific qualifications for an "immigration judge", aside from the fact that such individual must be an attorney appointed by the attorney general who is not an employee of the former INS. Logically, this latter requirement now would apply to ICE attorneys, as well as attorneys outside of DOJ.
Section 371 of IIRIRA, however, links compensation for immigration judges to the title "immigration judge" (and the corresponding duties of such judges in the INA). Therefore, in order to perform the duties of an immigration judge as set forth in the INA under the statute as currently written, an attorney would have to be paid on the IJ-1 through IJ-4 pay scale. Section 101(b)(4) of the INA would need to be amended to include magistrate immigration judges, and compensation would need to be set for those judges accordingly.
The Trump administration has made it clear that it wants to address the massive backlogs in the immigration courts that have undermined effective law enforcement in the United States. The additional 125 immigration judges proposed by Attorney General Sessions are critical to that effort. In that endeavor, Congress and the administration should also look to the federal courts' successful 50-year experiment with magistrate judges as a cost-effective model for achieving judicial goals.