Senate Examines Immigration Court Backlog; Dems Call for Taxpayer-Funded Counsel for Illegal Aliens

FAIR Take | October 2023

This month, the Senate Judiciary Committee held a hearing on the immigration courts, particularly the backlog of illegal aliens that have pending cases before an immigration judge. 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 new estimates suggest 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.

One area of focus during the hearing was on the shortage of immigration judges (IJs) to hear pending cases. According to EOIR, there are 659 total immigration judges working to manage all of the cases to determine if someone should be provided relief or removed. In his testimony, Charles Stimson from the Edwin Meese III Center for Legal Judicial Studies noted that, the average immigration judge has 3,570 pending cases, while the average federal district court judge (who has a staff of full-time law clerks) has 1,022. And, according to the Congressional Research Service, an additional 700 IJs (1,349 total) would be the minimum number needed to clear the backlog by FY2032.

Stimson also discussed how the backlog has grown since 1984. He said, “the immigration court caseload has exploded in size, from no cases in 1984, to 260,000 in 2011, to 876,552 in 2019, to 2.6 million today. Cases with merit, which deserve the court’s time and attention, are lumped in with meritless cases, creating a chaotic and unmanageable docket.”

The Government Accountability Office (GAO) also testified at the hearing on the challenges facing EOIR, including the backlog, resource challenges, and court operations. GAO has issued several reports on the immigration courts, most recently in July 2023, which detailed workforce, performance and data management challenges. GAO’s witness stated that the agency had made 17 recommendations to EOIR, and of those, only 9 have been addressed.

In his opening statement, Senator Cornyn emphasized how the backlog and challenges have increased due to open-borders policies. He lamented, “The courts can only do so much when the Biden Administration has opened the spigot at the border… According to one account, there are 2.6 million cases pending. Our immigration judges can’t do their jobs while being flooded with these huge numbers.”

Senator Cornyn also expressed concern over the number of fraudulent asylum claims contributing to the backlog. While noting the importance of providing asylum for those with legitimate claims, the Senator revealed that, “roughly 80 percent of [aliens claiming asylum] can’t qualify for asylum… so that means the 15-20 percent that do qualify can’t get to court on a timely basis because of the 80 percent that are in line.” With immigration courts being flooded by meritless claims because of our open border, the United States can’t prioritize cases of those who have a legitimate need.

While the hearing was intended to examine the immigration courts and their challenges, Democrats on the Committee focused on providing attorneys for those in deportation proceedings. Under current law, INA Section 292 (8 U.S.C. 1362), the U.S. government is prohibited from funding legal representation for aliens facing deportation. Specifically, the law states, “In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”

In the Senate, Democrats have introduced the Fairness to Freedom Act to establish a right to legal counsel at taxpayer expense for those facing deportation. Supporters for taxpayer-funded lawyers suggest that aliens with attorneys are more likely to obtain relief from deportation and believe it enhances an alien’s due process. However, legal counsel for immigration matters has shown to slow down cases, allowing for more continuances or delays in the process, often frivolous. Moreover, immigration violations are civil matters, and in the U.S. court system, litigants in civil cases are not entitled to a free lawyer at government expense. As the Immigration Reform Law Institute has pointed out, “Giving illegal aliens a free attorney to fight their deportations would almost certainly encourage more illegal immigration – an odd move to make when this country is experiencing record levels of illegal border crossings.”

Mr. Stimpson 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.”

Unfortunately, the challenges and caseload of our nation’s immigration courts will only get worse before they get better, especially given the record number of illegal border crossings in recent years. While throwing more money at the courts may help alleviate some issues, it is not a grand solution to the ill-conceived open-border policies that this administration has concocted. Stopping the surge at the border is the necessary first step to reduce the size of the dockets facing the courts today.