On reducing immigration backlogs, bigger isn’t always better

April 21, 2024

By Matt O’Brien

When the federal government deports an immigration violator, charges are brought before the U.S. Immigration Court. If the court orders the violator removed from the U.S., he or she can appeal that decision before the Board of Immigration Appeals (BIA).

Both the Immigration Court and the BIA are laboring under a crushing backlog of cases. At the end of FY2023 there were more than 2.4 million cases pending before the immigration courts and over 113,000 appeals pending before the BIA.

In an effort to reduce the number of backlogged deportation proceedings and speed up its immigration operations, the Department of Justice (DOJ) recently added five new Appellate Immigration Judges (AIJs) to the Board of Immigration Appeals (BIA). This is the third expansion of the BIA in the last six years, bringing it to 28 total members. In 2020, DOJ had expanded it from 17 members to 23, after increasing membership from 15 to 17 in 2018.

The size of the Immigration Court was also increased, rising from 442 Immigration Judges (IJs) at the close of FY2019 to 734 at the end of FY2023.

However, neither of those increases is likely to make even the smallest dent in the massive logjam the agency is facing. Especially in view of the fact that at least 7 million illegal aliens have entered the United States under the current administration.

If that seems like an untenable situation, it is. But our political leaders are pursuing the wrong solution. The backlogs aren’t caused by an insufficient number of IJs or an increasing number of migrants. Instead, they are a direct result of absurd rules that give aliens all of the protections available in American courts, but deprive IJs and AIJs of key powers that enable judges in other courts to effectively manage their dockets by dumping bogus cases.

Judges in most American courts can dismiss meritless claims on the grounds that they fail to state a case or controversy that the court is empowered to resolve. Yet IJs possess no similar authority. 

Each year, hundreds of thousands of aliens file requests for relief for which they are completely ineligible. For example, the vast majority of asylum applications are submitted by people fleeing poverty, crime or general conditions of civil strife – none of which are a legitimate basis for a grant of political asylum.

Nevertheless, IJs have no authority to dismiss these prima facie invalid claims and must spend hours hearing applications for relief from removal that, as a matter of law, simply can’t be proven. This wastes thousands of hours of IJ time – and is the cause of the current Immigration Court backlog.

The backup at the BIA is caused by a similar but distinct problem. In most American courts, there are two types of appeals: discretionary appeals and appeals as of right.

Discretionary appeals are requests for review that a higher court may choose to hear, but it is not obligated to do so. Before they will hear discretionary appeals, higher courts require a litigant to establish that the lower tribunal made some mistake that resulted in an incorrect decision. If the written briefs submitted by the party filing the appeal fail to establish any type of actionable error, the higher court will dismiss the matter without any further review.

An appeal as of right is a request for review that the higher court is obligated to hear, simply because the losing party has filed it. Typically, appeals as of right are available when some fundamental legal principle is implicated.

The vast majority of appeals before most courts are discretionary appeals, not appeals as of right. But, every foreign national who appears before the Immigration Court is permitted to file an appeal as of right before the BIA – despite aliens having no fundamental right to enter or remain in the U.S.

Yes, you read that correctly, every alien ordered removed from the U.S. by the Immigration Court appeal to the BIA. Even if he or she is a convicted murderer who is ineligible for any form of relief from deportation and even when there is no evidence that the IJ made any type of error. The alien can appeal to the BIA even when the law prohibited the IJ from doing anything other than deporting him or her.

Given the fact that the system is rigged in favor of the alien from the outset, and IJs and AIJs have virtually no authority to dump baseless cases, is it any wonder that the Immigration Court and the BIA are buried under irreducible backlogs?

It’s time that America’s political leaders stop protecting foreign nationals and start looking out for the American citizens for whom they work. Instead of adding more IJs and AIJs, and expecting them to labor harder, Congress should pass legislation that enables them to work smarter – by: 1) eliminating cases that never should have made it into the system in the first place; and 2) keeping aliens who never had a valid claim for relief from getting a pointless second bite at the apple. If IJs and AIJs are empowered to reduce the number of bogus matters clogging the system, they can eliminate the backlog and keep it from reoccurring.

Matt O’Brien is the Director of Investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.

Also published at American Thinker, April 20, 2024.