New Regulation Threatens to Wreak Havoc on Immigration Courts

FAIR Take | October 2023

Today’s border crisis is certainly leading to future challenges for our immigration system, particularly as the government looks to carry out removal orders and ensure “consequences” for illegal entry into the United States. Millions of illegal aliens have entered the country in the last three years, and the immigration courts are suffering severe backlogs that will ensure their ability to stay in the country for years to come. Making the matter worse are the policies being forth by the Biden Administration related to our immigration courts.

The immigration courts are operated by the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice. According to EOIR, the backlog of cases today stands at more than 2.2 million (although some newer estimates suggest the backlog is closer to 3 million). Shockingly, only a small fraction of cases are completed each year, resulting in illegal aliens waiting years until their cases are even heard.

Rather than adjudicating the cases before them, immigration judges are administratively closing cases to get them off their docket. While there is no statutory authority for the practice, immigration judges have been administratively closing their cases for years in order to “manage” their docket. When they “administratively close” a case, the judges simply put them back into the file drawer without making a decision on the merits. Cases that are administratively closed are taken off the active docket and are no longer seen as part of a backlog. 

For some illegal aliens, administrative closure serves as a way to pause cases while they apply for legal status or other form of legal relief.  But for many illegal aliens, administrative closure is an opportunity to pause their cases indefinitely — even over objection from government prosecutors — to avoid receiving a denial of asylum and a deportation order.

The Trump Administration issued a final rule in December 2020, also known as the AA96 Final Rule, to limit the authority of immigration judges to “administratively close” cases.” It also set time limits for appeals. Unfortunately, the final rule was enjoined by a federal court within weeks of it becoming effective.

The Trump Administration wanted to limit administrative closures because there is no statutory authority for the practice and its use has been abused. The Trump rule aimed to limit closures and force immigration judges to render final decisions and removal orders on illegal aliens rather than allowing them to remain and work in the country.

Continuances have similarly been abused to bog down the immigration courts and delay cases. Continuances are a request to postpone a hearing in court. They can be requested for a variety of reasons and may be requested by the alien, the government prosecutor or the judge. As the GAO has reported, the number of continuances requested has increased over time and the number of cases with multiple continuances has also grown. In the GAO’s analysis, 66 percent of continuances were requested by the alien. They can be requested easily and frequently, delaying the immigration judge from making a final decision, sometimes for years.

Despite the damage they inflict on the backlog in the courts, the Biden Administration wants to encourage immigration judges to use administrative closure and continuances. On September 8 of this year, the Biden Administration proposed a regulation that would make it easier for immigration judges to administratively close immigration cases. The Administration claims the rule “will promote the efficient and expeditious adjudication of cases, afford immigration judges and the [Board of Immigration Appeals (BIA)] flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the BIA.”

In addition to codifying administration closures, the Department proposes to make clear that termination of a case “is required where fundamentally fair removal, deportation, or exclusion proceedings are not possible because the noncitizen lacks mental competency and adequate safeguards are unavailable.” The Department also would allow for discretionary termination of removal, deportation, or exclusion proceedings in specific circumstances, including an unaccompanied alien child seeks asylum or when U.S. Citizenship and Immigration Services grants an unlawful presence waiver.

In a recent congressional hearing, Charles Stimson from the Edwin Meese III Center for Legal Judicial Studies said, “Simply put, immigration judges have no mechanism…to dismiss meritless cases or summarily grant judgement to the government as other courts can. Immigration judges must hear cases from start to finish, even if it is obvious from the outset that a case lacks legal merit. Predictably, the docket is clogged with meritless cases.”

FAIR continues to review the Biden proposed rule related to immigration court proceedings. The public may comment on the rule by visiting the Federal Register and electronically providing input or raising questions, to which the Administration is legally obligated to respond.