Earlier this week, the Department of Justice said they would be easing quotas for immigration judges that were set during the Trump Administration. The Executive Office for Immigration Review (EOIR) is currently developing new performance measures to replace the previous administration’s metrics that “will accurately reflect the reality of an immigration judge’s workload.”
In 2018, the Trump Administration published the EOIR Performance Plan for Immigration Judges, mandating that judges must complete at least 700 cases per fiscal year and maintain a remand rate of less than 15 % to receive a “Satisfactory Performance” rating. The previous Director, James McHenry, justified the policy change “to encourage efficient and effective case management while preserving immigration judge discretion and due process.” He continued to say that “using metrics to evaluate performance is neither novel nor unique to EOIR.”
The National Association of Immigration Judges, the union representing the EOIR Immigration Judges, commented that this was “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency” and that the new standards “compromised the integrity of the court.” The Union also disagreed with the Director’s justification saying that “no other administration before this has ever tried to impose a performance measure that [had] this type of metrics.”
The 14th Amendment guarantees due process rights to all persons in the United States, regardless of citizenship or immigration status. Critics of the previous administration complained that these metrics were not only unfair to the judges but also denied the rights for all individuals to have their cases heard in court.
The Executive Office for Immigration Review (EOIR) is a separate agency under the Department of Justice and was established in 1983. There are more than 69 immigration courts with a total of 535 immigration judges nationwide. The office adjudicates immigration cases and conducts court proceedings, appellate reviews, and administrative hearings, and is responsible for hearing civil administrative proceedings for foreign nationals that the Department of Homeland Security has charged with violating immigration law.
The immigration judges of EOIR conduct removal proceedings and adjudicate asylum cases for immigrants. The EOIR determines if respondents should be removed from the United States or granted relief and/or protection from removal.
The Department of Homeland Security initiates the process by filing charges against a foreign national whom they determine has violated immigration law. When the immigration court receives the case, the court schedules a master calendar hearing which is an initial hearing before an immigration judge. The respondent has explained their rights and the alleged violations charged. In this hearing, the immigration judge may then determine removability. If the individual is determined removable, the immigration judge then schedules a second hearing in which both the respondent and the DHS attorney present their arguments and evidence.
The EOIR is currently facing a backlog of 1.4 million cases with an average of 925 days to complete each case. Under the previous metrics, if all immigration judges were to be rated with satisfactory performance, approximately 374,500 cases would be completed each fiscal year. In 2021, there are 251 working days, excluding weekends and 10 public holidays, which equates to roughly 2.8 cases per day.
The Southern Poverty Law Center and Innovation Law Lab released a statement regarding the easing of performance metrics stating, “U.S. immigration courts are vulnerable to political manipulation and subject to the whims of presidential administrations because they are housed within a law enforcement agency…” The two entities had filed Las Americas v. Biden in December 2019 to challenge the Trump-era “mismanagement of the federal immigration court system.” While happy with the pivot in policy, the groups warned that they “will be closely monitoring any evaluation measures implemented by the administration to be sure they are not just a rebranding of Trump’s performance metrics.”
On September 24, 2021, Attorney General Merrick B. Garland appointed David L. Neal as the Director for EOIR. He had previously retired as chief immigration judge of the EOIR under the Trump position. President Biden’s Budget Request for Fiscal Year 2022 allows for EOIR to increase its immigration judge corps to 734 judges by the end of the fiscal year.
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