AILA: FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog

On December 19, 2018, the American Immigration Lawyers Association and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31,2017, states that the overarching goal was “to significantly reduce the case backlog by 2020.”3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions. Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (Us) of their ability to administratively close cases and compelled Us to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7 The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on Us by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.

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