Three Things to Know about Immigration Courts

For this month’s Think Table issue, we delve into the dysfunctional U.S immigration court system. Here are the three things you need to know about immigration courts

1. The immigration court system is in dire need of change. What is the immigration court system exactly?

It is the entity in which immigration judges primarily conduct removal proceedings and decide asylum claims for immigrants. The immigration courts are civil – not criminal – courts operated under the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR), which is under the Attorney General. EOIR comprises 58 courts throughout the U.S. and the Board of Immigration Appeals (BIA), an appellate body.

2. The nation’s immigration court backlog stands at an overwhelming 1.3 million pending cases waiting for hearings, and some immigrants have waited up to five years for a court hearing

Currently, there are only about 350 immigration judges nationwide who assist and facilitate these hearings. Since EOIR immigration judges lack the judicial independence and life tenure that federal judges enjoy, they can be fired and hired just like any other federal employee. The average immigration judge has a backlog of over 2,500 cases, which increases every day. The average wait time for an immigrant to hear their case is ~720 days (~2years), with bigger cities having an average wait time of over 1,400 days (~ 4 years). The main reason for the backlog is the lack of resources allocated by Congress to rectify and minimize the backlog. Various solutions have been proposed to address the backlog to provide more resources and flexibility(e.g., increasing funding for EOIR, hiring more immigration judges). None have been implemented.

3. Many immigrants are unable to have legal representation in their court hearings, making it much more difficult to explain their cases to the judge

Immigrants are protected under the 14th Amendment for due process, but since immigration courts are civil and not criminal, the immigration system is not required to provide a court-appointed counsel to immigrants facing deportation and unable to afford a lawyer. Statistics have shown that immigrants from different nationalities have very different representation and detention rates. For instance, Mexican immigrants had the highest detention rate (78%) and the lowest representation rate (21%). In contrast, Chinese immigrants had the lowest detention rate (4%) and highest representation rate (92%). Legal representation plays a key role in determining whether an immigrant is allowed to stay in the country. Immigrants unfamiliar with legal and court proceedings, speak another language, or unable to afford an attorney are more likely to face adverse decisions by immigration judges.

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