Even with no new arrests, it would take four years to eliminate immigration court backlog

Credible fear findings in expedited removal proceedings are plummeting, and this may just be the beginning of a campaign to reduce the demand for asylum hearings. 

In expedited removal proceedings, aliens are deported after an interview with an immigration officer, without further proceedings, unless they express a fear of returning to their own countries. 

{mosads}If they can convince an asylum officer that they have a credible fear of persecution or that it is more likely than not that they will be tortured if they return to their own countries, they will be scheduled for an asylum hearing before an immigration judge.

An alien’s fear is considered “credible” if it shows a “significant possibility” that he will be able to establish eligibility for asylum or for deferral of removal under the Convention Against Torture.

The persecution has to be on account of race, religion, nationality, membership in a particular social group, or political opinion. Otherwise, it will not make the alien eligible for asylum, no matter how serious it might be.

If the asylum officer rejects the alien’s claim, he can request an administrative review of the officer’s determination, which will be performed by an immigration judge. If the immigration judge rejects the alien’s claim too, he is deported without further proceedings.

Why it is necessary to expand the use of expedited removal proceedings? 

President Donald Trump’s immigration enforcement program is failing because of an immigration court backlog crisis. If he doesn’t eliminate that backlog soon, the population of undocumented aliens will be substantially larger when he leaves office than it was when he began his presidency.

The immigration court has never had enough immigration judges to keep up with its caseload. As of July 17, there were only 330 immigration judges for the 58 immigration courts, and there are only five vacancies for new judges.

The backlog has risen every year since fiscal 2006. It reached 733,365 cases in June 2018. When the five vacancies are filled, there will be approximately 2,200 cases per judge, with more coming in every day.

The average wait time for a hearing is 717 days — just shy of two years. 

In the first two quarters of fiscal 2018, the immigration court only completed 92,009 cases. At this rate, the immigration court will have completed only 184,000 cases when fiscal 2018 ends on Sept. 30.

Even if DHS stopped arresting deportable aliens, it would take the immigration court four years to eliminate its backlog. 

Attorney General Jeff Sessions is clarifying asylum eligibility requirements to make it easier to screen out aliens who do not have a legitimate persecution claim, but this will just slow down the rate at which the backlog increases. It won’t reduce it.

To reduce the backlog, Trump will have to pull aliens from the immigration court’s backlog and put them in expedited removal proceedings, and presumably this is why he is planning to expand the use of expedited removal proceedings.

In January, Trump instructed the DHS to apply expedited removal proceedings to the fullest extent of the law. This would extend it to include undocumented aliens who were not admitted or paroled into the United States and cannot prove that they have been here for two years.

It will be extremely difficult to help aliens who are caught up in this expansion. Congress has severely limited federal court jurisdiction over expedited removal proceedings.

The courts cannot consider expedited removal orders on a petition for review.

Review is available in habeas corpus proceedings, but it is limited to determinations of whether the petitioner is an alien; whether his removal has been ordered in expedited removal proceedings; and whether he has been lawfully admitted for permanent residence, or has been granted refugee or asylum status.

Other provisions permit challenges to the constitutionality of the system and its implementing regulations, and claims that the written policies and procedures issued under it are in violation of law. These challenges must be brought in the U.S. District Court for the District of Columbia within 60 days of when the challenged policy or procedure is implemented.

The expansion should greatly reduce the backlog, but it will not eliminate it. Too many of the aliens in removal proceedings have been physically present for two years.

Trump will need a legalization program to finish the job, but he has shown a willingness to work with the Democrats on legalization. But will they work with him?

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.