Immigration Court: The Other Backlog and What to Do About It

by Jason Dzubow on February 4, 2015

I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.

Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:

Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.

Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.

With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.

One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.

– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.

There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.  

Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.

e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.  

OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…

{ 43 comments… read them below or add one }

Emmanuel December 8, 2016 at 1:34 pm

Hi Jason,

I was supposed tk appear in court for my asylum acse in Sept 2014 qns by mistake the court pushed it back for another 4. Years. My new date us sept 2018. Is there a chance of counting these 8 years of waitning and consider them to get approval for LPR or even path to Citizenship? What that would be? And if not, is filing mandamus a helpful step after 2018?

Thank you

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Jason Dzubow December 9, 2016 at 7:32 am

The wait time does not count towards your LPR or your citizenship. You can file a motion in court to ask for a sooner hearing date. We do that for some people. It does not always work, but sometimes, it does. I do not think a mandamus would be the best path here – just file the motion instead. Take care, Jason

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Maya October 3, 2016 at 10:24 am

Hi Jason,

Do you know anything about the San Francisco Immigration court asylum grant rate?
My Master hearing date is 10 months from today so July 2017.

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Jason Dzubow October 4, 2016 at 6:21 am

Try Google-ing a website called TRAC Immigration. You should be able to find your judge and find his or her grant rate. Good luck, Jason

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Maya October 4, 2016 at 9:15 am

Thank you, Jason. You are a great help!

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Ben September 10, 2016 at 1:25 am

Good afternoon!

I have a question, I failed my interview in asylum office and i was reffered to the immigration court. One of reasons why my case was denied is that I have plenty of mistakes and inconsistancies in my pesonal statement. Does it possible to rewrite personal statement if I will continue to fight in the court, is it legally to do that and may rewritten statement bring any problems if the judge will have a saved copy of statement which was used before?

Regards,

Ben.

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Jason Dzubow September 12, 2016 at 1:56 pm

You can re-write the statement – we do it all the time for people. However, they will have a copy of your old statement, so you need to be consistent with that. Where there are inconsistencies or mistakes, you need to explain why they occurred. I would recommend you find a lawyer to help you with this, as such problems make a case difficult to win. Good luck, Jason

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Ben September 13, 2016 at 6:03 pm

Good afternoon!

So if statement will be rewritten which sence to rewrite it if the judge will have saved copy anyway? Maybe it’s better to leave old copy with mistakes and inconsistances? Or judge will operate with new (rewritten) copy in the court?

Does judge usually read old statement? Could remaking of my statement increase my chances to win in the court?

Regards,

Ben.

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Jason Dzubow September 15, 2016 at 6:38 am

We re-write it to make it more clear and to explain the mistakes. This has worked well for our clients, but different lawyers may have different strategies here, and you will need to decide what is best for yourself. Take care, Jason

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ben September 20, 2016 at 7:07 am

Will the judge operate with a new (rewritten) copy in the court or with old one?

Does judge usually read old statement? Could remaking of my statement increase my chances to win in the court?

Thank you.

Jaims July 29, 2016 at 9:54 am

Dear Mr.Dzubowl,

I’d like to express my gratitude to your efforts and time to answer all people inquires with no charge. You are an awesome person.

I have asked you before and you were very helpful.
My asylum case was referred to the court, we had our individual hearing on July this year. The judge said he will grant us asylum but he did not give us written statement. he asked the governmental attorney if she is going to appeal, she told him that she will let him know withing 2 wks if she is going to appeal or not. NOW the 2 wks already gone, our attorney asked her after the 2 wk were gone if she is going to appeal or not and her reply was I “don’t ” and she said the Chicago consult and their Deputy have not address it yet.

I don’t’ know who decide to appeal, the government attorney alone? or Chicago consult or both.
And HOW LONG will the IJ wait for the DHS to decide whether they will appeal or not to order his decision?

sincerely.

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Jason Dzubow July 29, 2016 at 4:39 pm

The government attorney decides whether to appeal, but she may have to clear that decision with her supervisors. The IJ can wait as long as he wants for the DHS attorney to make a decision, but if she is too slow, he can just issue his decision. For the IJ, the issue is, if DHS appeals, he has to write a long decision explaining his reasoning. If DHS does not appeal, he can write something very short, which is less work for him. For this reason, I guess he would rather wait for the DHS and hope that they will not appeal. Take care, Jason

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Jaims July 30, 2016 at 11:35 am

Thank you very much.You made clear to me.

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Jamis August 25, 2016 at 10:08 pm

Mr. Jason,
We have learned from our attorney that the governmental attorney will not appeal our case. In this case what make the IJ is so late to issue the decision? FYI he scheduled an individual hearing in sep this year to debate with the both attorneys ( our attorney, governmental attorney) if the geovermental attorney decided to appeal. Do you thing he will wait till sep to issue the decision because he already schedule an individual hearing? Or they can just cancel it?
FYI IJ isjust started working as a judge in july.

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Jason Dzubow August 26, 2016 at 6:34 am

The Judge can do as he likes. Typically, they will have you come to court, DHS will say that they do not object to your asylum case, and the Judge will grant the case. I suppose it is possible to do that beforehand, if the lawyers have submitted a request to the Judge, but for the most part, it is done in court. Take care, Jason

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James August 26, 2016 at 9:28 am

Ok, Thanks very much. God bless you.

Ali May 10, 2016 at 5:54 pm

Please Jason do you have any idea about Boston court. My case refer to the judge. Any asstimate how long this process will take ?

Thank you

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Jason Dzubow May 11, 2016 at 6:19 am

I do not know. If your case is in court, you need to talk to a lawyer in Boston, who should have an idea about the court and the waiting time. Take care, Jason

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Meli April 10, 2016 at 8:36 pm

Hi Jason, my case was sent to court, Baltimore. How long will it take to get a hearing? I heard they are scheduling far, please let me know if you have any idea.

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Jason Dzubow April 11, 2016 at 6:22 am

Most of our cases in Baltimore take between 6 months and 2 years. It may take a few months to get the first Master Calendar Hearing, though, DHS needs to submit the case to the court. Take care, Jason

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Sonia March 20, 2016 at 5:20 pm

Hi Jason, I was just wondering if you know how long it will take to appear in MD court, on the NTA there is no date its TBD, so frustrated, after waiting for more than 2 years got an unfair decision. is there any way to expedite my case in court? I have my spouse back home. One more thing I am applying for the AP, I talked with my lawyer about this but she knows my situation and she couldn’t say no to me. so if I left with the AP and when I return if they wont allow me back, will they deport me or detain me? Please explain if you know what exactly will happen? and what choice will I have at the airport just incase that happens?

Thank you!

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Jason Dzubow March 21, 2016 at 6:26 am

I think if you leave while under proceedings, even with AP, it is considered a deportation. You will not be allowed back in and you may also be ineligible for asylum (though you would still be eligible for Withholding of Removal and Torture Convention relief, neither of which would allow you to bring relatives to join you if you win). In addition, you may be detained. I am not certain about all this, so you might have your lawyer research the issues before you apply for AP, or at least before you travel. As for court, MD is “fast” compared to many other places – most of our cases are complete in 1 to 2 years, but we have had an issue with cases being rescheduled unexpectedly and at the last minute. You can also file written pleadings and a motion to advance the hearing, which sometimes works. Good luck, Jason

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Ali February 20, 2016 at 1:02 pm

Hi
So please I read on this post could you pay money for expediting your case?

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Jason Dzubow February 21, 2016 at 11:18 am

No – That is an idea I proposed, but USCIS has not implemented that, and I doubt they will. Take care, Jason

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Ali February 19, 2016 at 11:47 am

Hi please is there any way to expedite your case with immigration judge court?

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Jason Dzubow February 19, 2016 at 1:03 pm

Sure – You can file a motion to expedite with the Judge. Sometimes this works; sometimes, it does not, but you can try. Take care, Jason

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Ali February 16, 2016 at 9:05 pm

Hi please how long wait it take when you refered to new York judge court . Thanks for answering .

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Jason Dzubow February 16, 2016 at 10:43 pm

I do not know how long cases take in NY. It probably varies depending on who is the Judge, but I am not familiar with the Judges there, so I don’t know. In general, court cases take anywhere from 1 to 5 years. Take care, Jason

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Berry December 22, 2015 at 11:53 am

I have interviewd two weeks before at Alington the officer informed me incomplete materia and refer to court. what do you mean that and what do I do? I have three kids two of them are below six years they are livingv in my home country what do i do to fasten my case please provide me your usual advice.

Thank you in advance.

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Jason Dzubow December 23, 2015 at 12:39 am

If the asylum office made a mistake, you can ask them to reconsider. Otherwise, you are in court, and that is a slow process. You can ask the judge to expedite, but it depends on his or her schedule, and usually it is not possible. But anyway you can try. Take care, Jason

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Mikey November 19, 2015 at 1:55 am

Hi Jason,
Do you have any updates of the virginia immigration court please? My case was sent to the immigration court after being waiting a couple of years for interview due to the backlog. It is really painful to get this withholding removal for unsolid reason from the officer. Please help me what to do and update me with the current information and I really appriciate if you recommended me for a lawyer with specifically best recommended to Ethiopian immigrants. Finally, Could you also estimate how long will it take me for the first appearance at immigration court please?

Thank you very much.

Mikey

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Jason Dzubow November 20, 2015 at 7:11 am

The Arlington Immigration Court is a very good court in terms of grant rate, but it is quite slow – I currently have a case scheduled in 2020, and I have many cases in 2017 and 2018. The time frame depends on which judge you have (and on luck). As for recommendations, I recommend myself, since I do many cases there, including many Habisha cases. And I used to work for that court many years ago. If you want, you can call my office at 202-328-1350. Take care, Jason

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larry October 23, 2015 at 3:51 am

Dear jason Hi Thank you for the information. Can you please let me know the time that will take for asylum case referred to Seattle court takes to appear before the judge? My case just refereed to immigration court .
Thanks again.

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Jason Dzubow October 23, 2015 at 6:25 am

Sorry – I have no idea. I have seen such cases (in other places) take anywhere from a few weeks to over a year. You can contact the court or the DHS Office of the Chief Counsel (the prosecutor) to try to get more information. Good luck, Jason

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Eskew June 24, 2015 at 3:40 pm

Thank you for the information. Can you please let me know the time that will take for asylum case referred to Virginia court takes to appear before the judge?

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Jason Dzubow June 25, 2015 at 6:25 am

It varies – sometimes it is listed on the referral itself (on the Notice to Appear), but usually these days, it just says TBD – to be determined. I would expect in Virginia you would have a court date within 6 months. If you are worried about it, you should contact the Office of the Chief Counsel for DHS at 1901 S. Bell Street, 9th Floor, Arlington, VA 22202, or the Immigration Court, at the same address on the 2nd floor. Good luck, Jason

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abraham amadu March 16, 2015 at 1:21 am

Am applied for asylum since 6 month now no interview.it affecting me sicologically am been traumatised and his making me metal

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Jason Dzubow March 16, 2015 at 10:27 am

As I discuss in another posting, if you have these types of problems and can get evidence (like a doctor’s note), you can use that to try to expedite the case. It may not work, but you can try. Take care, Jason

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Janet February 24, 2015 at 2:59 pm

My sis applied 1 year ago .she received work permit and social security no. No interview yet waiting .she is very sick .she does not have a job .she is getting worst her eye sight one is blind .the othe eye getting worst can she see a dr .can it hurt her for her interviw.leaves in Bay Area where hospital can she go .pls help

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Ivan February 11, 2015 at 2:22 pm

Jason, I agree with e filing and e pleading and premium process. But I disagree with charging an alien in removal proceedings court costs. If the immigration courts need more money, get from the larger population. Don’t make it more onerous on the aliens. I’m also not a huge fan of having a clerk give information to the alien. The information could be wrong and it could prejudice the alien.

If I had a magic wand and could change the court system, one recommendation I would float is providing indigent aliens with representation. That is creating a system similar to the public defender’s. You would be amazed how many people who are deported should have stayed in the United States once they find legal representation.

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Jason Dzubow February 11, 2015 at 3:14 pm

And providing indigent aliens with attorneys would make the court system more efficient. Whether it would result in over-all cost savings, who knows, but obviously it would help those people with legitimate claims and no lawyers.

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Greg February 9, 2015 at 7:33 pm

E-filing and e-pleading. Yes!

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Jason Dzubow September 21, 2016 at 5:03 pm

We re-write the statement in most cases. The judge may look at the old statement, so you need to explain any substantive changes. Also, the ICE attorney (the prosecutor) can read the old statement and ask you about inconsistencies. It can be tricky to re-write a statement that was inaccurate, but in my experience, correcting and explaining errors is generally the best way to address the problem. Take care, Jason

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