New Developments In U.S. Immigration Court

In September 2019, The Wall Street Journal reported that the docket pending at U.S. Immigration Courts surpassed one million cases.1 In response to this increasing backlog, the Executive Office for Immigration Review ("EOIR") implemented a number of rules, regulations, and policies aimed at maximizing efficiency within the U.S. immigration court system. Indeed, addressing the backlog of cases pending in immigration court has been a focal point of President Trump's administration.2 While these policies are intended to streamline the U.S. immigration system, they also present new challenges to maintaining the independence of immigration judges and protecting due process rights for respondents. This post discusses several policy changes and updates within the EOIR, as well as potential consequences for judicial independence and due process rights.

Case Completion Quotas and Performance Evaluations for Immigration Judges

On March 30, 2018, the EOIR issued a memorandum outlining new performance evaluation metrics for immigration judges.3 The memorandum describes how immigration judges must now complete at least 700 cases per year, with less than a 15% remand rate from the Board of Immigration Appeals ("BIA") or Circuit Courts, in order to obtain a "satisfactory" performance rating.4

Both the American Bar Association and National Association of Immigration Judges have expressed concern about the threat that these new performance metrics present to immigration judges' independence and the due process rights of individuals in removal proceedings. Prior to the distribution of the 2018 memorandum, the President of the American Bar Association issued a statement, "strongly disagree[ing] with any attempt to establish mandatory case completion quotas for immigration judges."5 The statement notes that performance metrics "based solely on the number and speed of cases resolved" could threaten the independence of immigration judges.6 Undoubtedly, failure to meet case completion goals has significant personal consequences for immigration judges, as poor performance ratings could result in a judge losing his or her job.7 Citing these consequences, Judge Ashley Tabbador, President of the National Association of Immigration Judges, argued that the new metrics unfairly pit judges' personal interests against the due process considerations of those in removal proceedings.8

Restrictions on Granting Continuances: Matter of L-A-B-R-

8 C.F.R. § 1003.29 permits immigration judges to grant a motion for continuance for good cause shown.9 Prior to 2018, several circuit courts held that immigration judges generally have broad discretion to determine whether to grant a continuance.10 For instance, Matter of Hashmi established that judges can use a multi-factor test to determine whether a respondent has satisfied the good cause requirement for granting a continuance.11 This discretion has historically been key to protecting immigrants' right to seek counsel, as it often provides individuals with adequate time to seek counsel before their case is adjudicated.12 As Chief Immigration Judge Marybeth Keller stated in 2017, "the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all."13

In Matter of L-A-B-R-, issued in 2018, Attorney General Sessions greatly restricted immigration judges' broad discretion to grant motions for continuance.14 He focused specifically on the good cause requirement delineated in 8 C.F.R. § 1003.29, explaining that this standard prevents immigration judges from granting continuances "for any reason or no reason at all."15 Although he affirmed Hashmi's multifactor analysis for describing good cause,16 he noted two primary factors that immigration judges must emphasize: (1) the likelihood that the immigrant will be...