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Since 2017, the backlog of pending immigration cases in the United States has been growing exponentially. Today, there are over two million pending cases in the U.S. immigration court system. Over the past few months, the situation has significantly worsened, with a record-breaking number of new deportation cases filed in the court system in August, putting the total number of new deportation cases at 1,230,000 in FY2023. With the court system facing this unprecedented number of cases, the initial response from the Executive Office of Immigration Review (EOIR) has been to increase the number of immigration judges.

But the old adage, “haste makes waste,” applies in courtrooms too. This strategy overlooks other considerations necessary for a more comprehensive response to the systemic issues in immigration courts. The EOIR must consider balancing quality with quantity in response to the immigration backlog.

Further, the rapid increase in deportation cases despite increased judicial quantity shows there are other significant problems underlying the immigration backlog. Increasing the number of immigration judges as the primary response to the backlog will not only be insufficient but will divert attention and resources from longer-term solutions to these issues.

Chicago Appleseed Center for Fair Courts and the Chicago Council of Lawyers believe that these problems must be addressed at their source within the immigration system for due process to be fully realized, while still recommending an increase in hiring in 2012 to meet growing demands. While this recommendation remains relevant as a partial response to increased caseloads, its potential effectiveness as a primary solution has been diminished by the rapid growth of the immigration backlog more recently. Today, increased appointments cannot have meaningful impacts on immigration courts independent of additional reforms ensuring the quality of immigration judges’ decisions and protection of judicial independence.

The rise in pending cases since August is part of a much longer trend of a growing immigration backlog. The number of pending cases has been increasing steadily, starting at approximately 328,000 in 2012 and now at over 2 million. These numbers represent more than a mere administrative backlog but a range of tangible consequences for litigants’ lives and the effectiveness of the court system. Noncitizens spend an average of two years waiting for a final decision on their immigration cases – delays that affect their financial security, physical and mental health, and, for detained people, their eligibility for other forms of relief. The average length of immigration detention was 55 days as of December 2019, but it is becoming increasingly common for these stays to last several years as the immigration backlog worsens.

EOIR hired 104 immigration judges in FY2022, the largest number of new immigration judges to be appointed in a single year in the agency’s 40-year history, putting the total number of immigration judges at 649 at the end of Q2 in 2023. Unfortunately, this influx of judges has had little impact in mitigating the backlog. The Congressional Research Service (CRS) estimates that an additional 700 immigration judges, thus doubling the total number of immigration judges, would be necessary to resolve the immigration backlog by 2032. However, this projection is based on consistently resolving 500 cases per year, which does not account for potential policy changes or new growth in the backlog that could alter the future accuracy of this assumption. Further, considering there are already concerns surrounding the training and qualifications of immigration judges, doubling the amount of new entrants without adjusting recruitment and hiring processes would only compromise the quality of training that EOIR is able to provide.

As the number of immigration judges increases, the ratio of support staff to judges will decrease unless EOIR dramatically alters its hiring practices. If the rate of appointment of new immigration judges continues to exceed the hiring of the necessary support teams, judges’ dockets will become increasingly unmanageable with significant adverse implications for due process. Judges alone cannot solve the inefficiencies of the immigration process, as administrative staff, judicial law clerks, and interpreters all have crucial responsibilities to facilitating the process. This support is vital in giving judges time to fully consider each case. EOIR’s appointment of judges has far outpaced the hiring of support staff while disregarding directives from Congress; the ratio of support staff to immigration judges had previously been one-third to one-half of the level at the time of this report. As articulated by the American Federation of Labor and Congress of Industrial Organizations on behalf of overburdened immigration judges:

DOJ’s neglect and poor execution of meeting courtroom infrastructure needs, from interpretation services to electronic filing technology to inadequate space for courts, has heightened the dysfunction in the immigration court. Insufficient and unequal access to representation for people who appear in the immigration court only increases processing delays, especially when cases involve vulnerable populations.

As EOIR has increased judicial appointments, it has failed to expand and improve its new judge training program and continuing legal education for all judges and judicial law clerks. The amount of training provided is woefully inadequate to familiarize new judges with the intricacies of the complex field of immigration law and skimps on practical training and mentoring experiences.

New judges come to the job with varying degrees of experience in this specialty field, and the training is not properly tailored to address these variations. Judges with less or no experience need more training than is currently provided, and judges who are selected to mentor new hires need training in that role and time off the bench themselves to be fully engaged in ongoing education and training of their mentees.   

Focusing on the quantity of immigration judges ignores another relevant issue in the quality of decisions and the extent of judicial independence. The balance between judicial authority and government influence has been a point of concern for immigration judges for years, first given significant voice in a 2010 American Bar Association (ABA) Report. One of the primary recommendations for reform circulating today as a step toward judicial independence is the creation of an Article I Immigration Court. Immigration judges are currently appointed without term limits and are subject to the authority of the Attorney General and the DOJ at large, including for their transfer or removal from office.

An Article I court, however, would remove immigration courts from the oversight of any executive branch cabinet member, thus offering immigration judges greater independence similar to that of the judges in the U.S. Bankruptcy Court and Tax Court. This was one of the ABA’s major recommendations for reform in their 2010 report, along with two other alternatives: an independent executive branch agency housing trial and appellate immigration courts or a “hybrid model” integrating components of an independent agency and an Article I court. The ABA has since released an updated report in 2019 responding to the intensification of the issues raised in the 2010 report, this time making an Article I court their primary recommendation for improving judicial performance and increasing judicial independence. 

While there is widespread support among current and former immigration judges for an Article I court, the enormous pressure to stem the rapidly growing case backlog has captured the spotlight instead. Rather than making these more fundamental reforms, there remains a myopic focus on appointing more immigration judges and on urging immigration judges to prioritize the speed of decisions despite concerns of due process. Consequently, broader reforms such as the creation of an Article I court are continuously deferred. 

Under the supervision of the DOJ, immigration judges largely lack control over their own dockets, the speed at which cases are adjudicated, and the teams that are hired to support them. Although increased independence in these areas might be perceived as conflicting with aims of efficiency, many convincingly argue that they would not adversely impact efficiency as they are likely to greatly reduce the number of lengthy appeals which plague the Board of Immigration Appeals and federal circuit courts. Increasing immigration judge discretion regarding how they manage their dockets and allowing them more administrative control are important intermediate steps towards judicial independence which could be implemented immediately and would allow immigration judges to do their work in a more effective and thoughtful manner. Ultimately, the current quantity-focused approach which is applied both inside and outside the courtroom raises concerning implications both for litigant outcomes and public perceptions regarding the fairness of the system as a whole.