The consequences of Trump’s immigration court quota

Today, a staggering 640,000 people are waiting for their day in immigration courts around the country. Common sense dictates that a backlog like this is a problem for everyone — the parties, the courts themselves, and the general public. 

However, the Trump administration’s foolish solution for addressing the problem — setting quotas for the number of cases immigration judges must resolve in a year — is only going to make matters worse, quickly. And it is proof of the administration’s continued disrespect for due process and the rule of law.

{mosads}Unlike traditional federal courts, which comprise an independent branch of government, immigration courts are an arm of the executive branch, under the control of the Justice Department. The attorney general, as the head of the Justice Department, has broad authority to set policies for how immigration courts — and their employees — work.

However, they are still courts that are presented daily with serious matters of individual rights, public safety, and foreign policy. They are places to which petitioners — many of whom have fled persecution and are seeking asylum — can turn to be heard in a respectful and impartial manner. America’s respect for litigants and process is what makes our legal systems special. And it is, in part, what draws many people to come here in the first place. While we all want efficiency from the government, we cannot require sensitive employees like judges to behave in a careless or reckless manner in exchange for a shot at a performance bonus at the end of the year.

In addition, immigration decisions are appealed to federal courts. Ironically, forcing immigration judges to work more quickly is going to make the entire legal system even slower. Sloppy mistakes, inevitable when judges are under the gun, are likely to lead to more appeals.

Moreover, it now behooves every individual who loses a case in immigration court to challenge the decision on the basis that a rushing judge failed in his or her basic duty to adjudicate a case properly. Our federal courts are not equipped for such a massive surge of cases. Not that the administration has demonstrated much interest in seeing that courts can do their jobs well; the president has a long history of belittling courts and judges and undermining their independence. This decision should shock no one.

Particularly disappointing is the fact that in trying to hide its anti-immigrant ethos in a personnel decision, the administration is obscuring the real reason we ended up with overwhelming case backlogs in the first place. These new quotas flow from the notion that federal employees are lazy and inefficient.

The problem is not that individual immigration judges do not work quickly enough — the problem is that the entire system has set them up to fail. Over the years, as spending on border and interior enforcement has increased multifold, spending on immigration judges has remained remarkably constant. There simply are not enough immigration judges to do the job well any more.

I saw this firsthand. From 2015 to 2017, as a senior executive at the Justice Department, I served on the hiring committee responsible for recommending new judges to the Deputy Attorney General and Attorney General. Made up of senior political, career, and immigration officials, we oversaw an aggressive initiative to fill the many vacancies left by attrition, hiring freezes, and years of chronic underfunding of the immigration courts. Still, as of last November, only 336 of 384 immigration judges were on board. The Justice Department should be commended for continuing to fill the positions. However, as the backlog grows, filling a few empty jobs is not going to resolve it.

In short, Congress should increase the total number of immigration judges dramatically. Even with all 384 slots filled, every immigration judge would have a caseload of just shy of 1,700 cases. No reasonable individual could be expected to work through that much sensitive material with any degree of accuracy. As a result, tying judges’ performance evaluations to arbitrary numerical quotas crosses the line from being poor policy to simply being cruel to everyone. Numerical quotas may make sense for parking enforcement cops. They make no sense whatsoever for individuals overseeing one of the most critical functions a government can perform.

At a hearing about immigration courts tomorrow afternoon, the Senate Judiciary Committee has an excellent opportunity to push the administration for answers about this misguided policy change. Congress has the power to clean up this latest mess, and should do so before it gets worse.

Elliot Williams ran the Office of Congressional Relations at U.S. Immigration and Customs Enforcement from 2009 to 2013, and was a deputy assistant attorney general at the Justice Department from 2013 to 2017. He is now a Principal at The Raben Group, a government affairs and strategic communications firm in Washington. Follow Elliot on Twitter @elliotcwilliams.