Much has been written about the strain placed on the immigration court system by the recent influx of minors from Central America. A little known fact about the Immigration Court system, unlike every court in the land, virtually no immigration court cases are resolved without a hearing.
A simple rule change requiring mandatory pre-hearing negotiations between the parties, with a view to stipulating noncontroversial facts leaving core issues for hearing resolution, would necessarily lead to shortened hearing times, easier resolution of cases, and allowing more cases to be heard.
Presently there are approximately 243 immigration judges located in 59 immigration courts serving the United States and its territories. Of this number of judges, only about 228 actually hear cases; the remaining are used in an administrative capacity. Among the sitting judges, there are more than 375,500 pending cases, with an average days of pendency at 587. These numbers are exploding due to the influx of arriving aliens across the southern border of the United States.
It should be noted that the immigration court system is an agency within the Department of Justice. Indeed, until the last decade, the Department of Justice was also the umbrella organ for the Immigration and Naturalization Service, now part of the Department of Homeland Security.
As employees of the executive branch of government, both of which share a law-enforcement mission, they work closely together on policy at the highest levels within the Executive Department. To this day, it appears that immigration courts, notwithstanding their important function within the United States justice system, are step-children when it comes to funding — more work with the same or lessened resources. It is therefore obvious that, given the courts’ shortfall of resources, any saving in time constitutes at least another Band-Aid on a failing system.
With a rule change requiring parties to submit to the court agreed to facts before hearings — a process available in almost all of the court systems’ nationwide — saved time will extend the courts’ resources.
Currently, it appears that government attorneys are severely hampered in their exercise of discretion in the courtroom by policy directives from on high. The institution of a rule requiring the use of their discretionary function in pre-hearing accommodation would ensure that government trial attorneys work effectively with the private bar to squeeze out at least some new measure of additional time for the immigration courts to use.
Resolution of issues before trial, however, will require preparation beforehand by all parties — the private bar by filing as complete submissions of evidence as possible and the government by earnest preparation to enter into fruitful negotiations.
Easy areas that come to mind include stipulations on expert witness credentials and expertise, more liberal use of withholding of removal (remedies that confer no immigration benefits, but do stop removal to an offending country); in marriage fraud cases, disallowing court room questioning on the validity of the marriage, where there is already a visa petition approved after interview by USCIS; limiting testimony in cancellation of removal cases to the extreme and unusual hardship prong of the law.
Other cases that come to mind to save time include stipulation on the admission of discretionary evidence; accepting declarations of witnesses or agreeing, in the alternative, for those witnesses targeted questions only; stipulations to grant relief based solely on well-documented evidence. These are but some of the issues that might be addressed to shorten hearing times.
Imagine our state or federal court system if every case went to trial. This is a snapshot of our immigration courts. It is hoped that DHS will vest its attorneys with the ability that all other government attorneys have to use their discretion to resolve cases, without the necessity of formal regulations.
With a good faith effort by all sides to prepare and to reach agreement by stipulation, much can be accomplished to the goal of saving time without unduly prejudicing the rights of the parties.
Bruce W. Solow is a former immigration judge in Miami.