DOJ Plans Further Reforms to Immigration Court Proceedings
Attorney General (AG) Jeff Sessions has expressed his frustration with the pace of case processing before the Executive Office of Immigration Review (EOIR), and its immigration court. The agency is facing a caseload of 650,000, which has far outstripped the agency’s resources to hear cases in a timely manner. The initial response was to hire more immigration judges (IJs) and place them on the Southern border to process contemporaneous arrivals. Taking the next step, AG Sessions has outlined a few initiatives to reduce the massive backlog.
First, the agency will continue to hire more IJs, including retired judges, and implement a video conferencing system that allows IJs to hear cases remotely. The AG expects to have every immigration court operating five days a week. Next, EOIR will seek to strengthen its communication with ICE attorneys to encourage a more efficient court calendar.
Finally, the AG will attempt to transform EOIR’s institutional culture and infrastructure. One positive aspect of this initiative is to rely more on electronic filings, which, if implemented properly, will make the agency more efficient. However, the effort also will “realign the agency toward completing cases,” which will reduce discretion to administratively close cases. Guidance will be issued about the timely adjudication of cases and supervisory IJs will be placed to enforce new standards, possibly imposing quotas.
The fundamental concern with attempting to accelerate cases in this fashion is that it removes the necessary autonomy and discretion of an impartial immigration court. The EOIR is a trial court setting where both law and justice are necessary, and IJs need the independence to ensure that that is accomplished. While the backlogs are problematic, expediting removal proceedings without appropriate due process seriously threatens the fairness and credibility of the immigration courts. The guidance on timely adjudication is yet to be issued and the forthcoming standards are unknown, but pushback from the IJ union may have a tampering effect.
USCIS No Longer Affording Deference to I-129-based NIV Extensions
For over 10 years, USCIS has taken the approach that, when adjudicating extension petitions involving the same employer, the same beneficiary, and the same underlying facts, its adjudicators would defer to prior approval determinations. USCIS has now reversed this policy, interpreting it as placing an extra burden on the agency to find and compare an old petition to an extension and shifting the burden of proof to USCIS when that burden lies with the petitioner. Moving forward, USCIS officers will be treating all extensions as independent and new filings, even though promulgated regulations do not require supporting documents in many kinds of nonimmigrant extension cases. In its announcement, USCIS also stated that it does not want its adjudicators to rely on previous determinations at all, as it may have the unintended consequences of missing material defects in prior petitions.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org