Law360 published this article on April 5, 2024. Written by Britain Eakin for Law360.
Attorneys have welcomed the Board of Immigration Appeals' five-member expansion as a step in the right direction for chipping away at the board's record backlog of cases, but say the move likely won't be enough to solve the problem.
The U.S. Department of Justice's Executive Office for Immigration Review announced April 1 that it was adding five jurists to the existing 23-member board in an effort to cull its caseload of 113,000 pending appeals.
While expanding the board was needed, given the number of cases in the backlog and because the BIA hasn't kept pace with the growth in the immigration judge corps, an underfunded, understaffed and overwhelmed immigration court system still beleaguers the DOJ, according to Aimee Mayer-Salins, a managing appeals attorney with the Capital Area Immigrants' Rights Coalition.
Mayer-Salins said the federal government should consider reprioritizing who to place in immigration proceedings to begin with, and which cases it appeals to the BIA, saying appeals by the U.S. Department of Homeland Security "should be extremely rare."
"The root issue with the backlog is that — I mean, it sounds obvious — but there are way more cases than adjudicators to handle them. And that, at its root, is about who the government is choosing to prosecute," Mayer-Salins said in an interview.
DHS could choose to not prosecute or appeal cases where there are vulnerability factors — for example, those involving unaccompanied children, individuals with documented mental health concerns, detained individuals, or Indigenous or rare language speakers, she said.
"I think that would have a far bigger impact on the backlog than simply expanding the number of board members," she said.
An overall staffing shortage in the immigration court system, which has a current backlog of more than 3 million cases, is also bogging down the system.
The federal government is adding immigration judges "at an absolutely unprecedented rate," according to David Bier, the associate director of immigration studies at the Libertarian think tank Cato Institute. However, the government has not added a proportionate number of support staff to do the necessary research to allow the judges to issue good decisions, Bier said.
The end result is rushed immigration court hearings that often spur appeals.
"As long as the appeals process is extremely backlogged and immigration judges are forced to hurry through their cases, we will continue to see an increasing number of appeals," Bier said in an email.
Mayer-Salins said support staff for judges often gets overlooked when Congress is appropriating money to hire immigration judges.
The DOJ said in the final rule announcing the expansion that public input informed the decision to increase the board's size to 28. The DOJ determined that number would balance the need for efficient adjudications against the need for cohesion, and would not compromise the board's ability to reach consensus on immigration policy, which members set through their precedential decisions.
ManoLasya Perepa, policy and practice counsel with the American Immigration Lawyers Association, noted an overall lack of transparency from the BIA that she said needs to be cured alongside the backlog.
Practitioners don't have much insight into how board members get assigned to panels, or how the board prioritizes which cases are urgent and therefore get decided more quickly, she said. That leaves attorneys largely guessing at where their case is in the queue, a problem that can be worsened by a change in presidential administration and a shift in how cases get prioritized.
"I think from a literal sense … having more board members looking at cases and reviewing cases, is going to be helpful in getting through the backlog," Perepa said in an interview. "But you know, it's kind of like scratching the surface when it really requires a more comprehensive look into how they organize the structure of the BIA."
Rather than try to fix the BIA, Perepa urges more comprehensive reform, suggesting that Congress should create an independent immigration court system in the vein of the U.S. Tax Court, federal bankruptcy courts and the U.S. Court of Appeals for Veterans Claims that are not tied to the executive branch.
That would give immigration courts more funding and independence to decide how best to adjudicate cases, would help streamline the appeals process into the federal court system and ensure that courts have time to adequately evaluate each case's merits, rather than rushing just to clear out backlogged dockets, Perepa added.
"The system overall is really opaque. And though it can seem like just expanding the number of judges is good, it really should be done in tandem with taking a lot of other actions as well," Perepa said.
--Additional reporting by Alyssa Aquino. Editing by Kelly Duncan and Michael Watanabe.
