Biden’s ‘dedicated docket’ a re-tread of old policies that didn’t work

On May 28, 2021, Department of Homeland Security (DHS) Secretary Alejandro N. Mayorkas and Attorney General Merrick B. Garland announced a “dedicated docket” program to “more expeditiously and fairly” make decisions in the immigration cases of certain families who are apprehended after making an illegal entry between ports of entry along the Southwest Border.  These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” (ATD) program.

The ATD program uses varying degrees of supervision and monitoring options to ensure that undocumented aliens will appear for their removal proceedings. This may include global positioning system (GPS) tracking devices, telephonic reporting, or a smartphone app (SmartLINK) that uses facial recognition to confirm identity for scheduled check-ins. Case management also may include office or home visits.

The Executive Office for Immigration Review (EOIR) will establish a dedicated docket in 10 cities with established communities of legal service providers and available judges: Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle.

The judges who handle these cases will try to issue their decisions within 300 days, but the length of the wait for a master calendar hearing remains to be seen. The average wait for a hearing on the regular docket, which has a 1.4 million-case backlog, is 1,172 days. The regular docket wait is likely to increase — because judges are dividing their time between the dedicated docket and the regular docket.

EOIR claims that the families whose cases are placed on the dedicated docket will be provided with a number of services, including possible referral services to facilitate legal representation.  Each city with a dedicated docket has an established pro bono network.

The announcement concludes that, “While the goal of this process is to decide cases expeditiously, fairness will not be compromised.”

I expected Biden’s supporters to welcome this development — but they don’t.

Implementation 

Many questions exist regarding the criteria being used to select the families assigned to the dedicated docket, but TRAC Immigration has been able to obtain statistics on how many have been selected.

As of Aug. 31, 2021, a total of 16,713 individuals comprising approximately 6,000 families had been assigned to the program.

Although EOIR set up dedicated docket hearing locations in ten cities, the cases have been concentrated in just a few; in fact, half of the 16,713 cases were assigned to New York City and Boston, and six judges accounted for nearly two-thirds of the assigned cases.

In half of the currently scheduled cases, the hearings will not begin until after mid-November 2021, and 10 percent of them are not scheduled to begin until mid-February 2022. These delays may get longer when more families are brought into the program.

Taking judges away from their regular docket cases will hamper efforts to reduce the backlog in in those cases. For instance, EOIR assigned 3,178 of the cases to Judge Mario J. Sturla in Boston. This brought his total workload up to 6,896 cases. This gives him an overwhelming number of cases on each of the dockets.

Complaints

The providers of pro bono legal immigration services in the cities chosen for the dedicated docket cases sent a letter to Mayorkas and Garland expressing strong opposition to the program. They explained, among other things, that they were already having to reject many requests for help in removal proceedings when the program was announced. There were 143,532 unrepresented individuals with pending removal cases in their cities as of the end of May.

Moreover, they don’t want anyone to be subjected to expedited adjudications until all of the Trump-era policies and practices undermining the asylum process are reversed.

The Florence Project claims that the Obama and Trump administrations used so-called “dedicated dockets” to mitigate backlogs in immigration courts and these programs not only failed to clear backlogs, but they also led to widespread violations of immigrants’ due process rights and undermined access to legal counsel.

Human Rights First claims that the rocket dockets in previous administrations led to high rates of in absentia removals, mistaken decisions that needed to be corrected on appeal, and increased backlogs. They want Biden to end the dedicated dockets program and take the steps they previously recommended to enable timely and fair asylum hearings.

Former EOIR chairman Paul Schmidt says that when dedicated docket judges are not available for cases on the general docket, it will place extra burdens on their judicial colleagues who are handling the general docket cases. This is likely to promote aimless docket reshuffling. Rearranging the deck chairs on the Titanic like this will prevent the crew from getting more passengers off in time to save lives.

Gracie Willis, a staff attorney at the Southern Poverty Law Center thinks it is unfair to the individuals who have been waiting for their day in court for years to establish a “rocket docket” for families who have just crossed the border.

Why is Biden using an immigration court program that wasn’t successful when it was tried by two previous administrations with much smaller immigration court backlogs? And he is doing it in spite of opposition from his supporters.

Moreover, this isn’t the first time Biden has resurrected a plan that has failed in the past. According to Brookings, his plan to reduce illegal migration from Central America by addressing the root causes for leaving those countries to come to the United States did not work when the Obama administration tried it.

I have no idea why he thinks he can make these failed strategies work.

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. Follow his blog at https://nolanrappaport.blogspot.com.