Unclogging the nation’s immigration court system

Late last month, President Biden announced his initial plans for immigration reform: a sweeping bill and an impressive package of executive actions. Collectively, these robust early steps are a welcome pivot away from President Trump’s relentless four-year assault on immigrant communities. 

Already, the president’s much anticipated moratorium on deportations has become ensnared in litigation. But regardless of the outcome of that case, the president has promised to use the first 100 days of his presidency to chart a new course toward a fairer and more functional immigration enforcement system. 

To ensure the success of this laudable effort, the Biden administration must include a focus on the nation’s immigration court system and dismiss from its docket the hundreds of thousands of non priority cases that are unnecessarily clogging its operation. 

On Trump’s watch, the backlog of deportation cases in immigration court more than doubled, reaching an unprecedented 1.3 million cases. The average wait time just to get a hearing before an immigration judge is now over 1,600 days, with a quarter of immigrants waiting over five years.  A court system that cannot deliver timely justice undermines the integrity of the entire enforcement system and deprives people who are eligible for lawful status of their fair day in court. 

Vice President Kamala Harris has publicly committed to addressing the immigration backlog by hiring additional immigration judges. But adding more judges to try to keep pace with a maximalist detention and deportation enforcement strategy is not the answer — and certainly not the way to achieve a fairer, more humane system. 

During the first two decades of this century, through Republican and Democratic administrations alike, we have employed a one-way ratchet, making our immigration enforcement system increasingly punitive and massive. Yet, over the same period, compliance with immigration law has gone down not up. It is time for a new approach.  

A broad coalition of 90 immigrant advocacy, civil and human rights organizations, including the American Immigration Lawyers Association, has called on the Biden administration to reject the “misconception that detention and deportation must anchor the enforcement of our nation’s immigration laws.” 

Seeking to deliver the harshest penalty possible in all cases is not the way other federal agencies effectively enforce the law. When the Environmental Protection Agency, the Securities and Exchange Commission or the Internal Revenue Service encounter a violation, their first step is to provide the regulated entity with an opportunity to comply with the law. If that fails, they then consider whether the violation is serious enough to warrant the significant human and fiscal costs associated with more punitive action. Immigration agencies’ failure to adopt similar cooperative enforcement strategies or to effectively prioritize enforcement resources has given rise to the massive immigration court backlog and has caused untold suffering and injustice. 

If Biden is to succeed in plotting a new course on immigration enforcement, he must be candid with the American people that leading with detention and deportation in all cases has not worked and that there is a more humane and effective way to enforce immigration laws. Toward this end, his administration has already established new interim prosecutorial discretion guidelines, which take effect today. This is a critical step. But limiting new arrests will not prevent the immigration courts from sinking under the weight of the hundreds of thousands of cases that were filed in the past.   

That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.  

Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.  

Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts. 

Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.