Fixing the 1.6M Immigration Court Case Backlog Means Moving It Away From DOJ, Judge Says

The House Judiciary Committee's Subcommittee on Immigration and Citizenship will meet Thursday to discuss the prospect of making the nation's immigration courts independent of America's top legal enforcer, the Department of Justice (DOJ).

Among those who will speak before the House committee is federal immigration judge Mimi Tsankov, who served with the Justice Department's Executive Office for Immigration Review (EOIR) since 2006 and serves as president of the National Association of Immigration Judges labor union.

While insights on the federal immigration court system and its 1.6 million pending case backlog are often shielded from the public due to press restrictions on federal judges, Tsankov, in her capacity as president of the union, was able to shed light on the challenges facing the nation's immigration judges in an interview with Newsweek.

"When I think about the backlog, I look at it from a big picture perspective, and we have to think about the fact that over the years there's really been a tremendous imbalance, since 911, between enforcement and adjudication," Tsankov told Newsweek. "Many more resources have been devoted to enforcement but far fewer to the immigration courts. This is somewhat predictable because the structure of the immigration court is that it's placed within the Department of Justice, which is a law enforcement agency."

Immigration Rights Activists Demonstrate In Washington, D.C.
Immigration courts lie under the purview of the Department of Justice, allowing the executive branch to make regular changes in how they conduct business. Here, an immigration activist participates in a rally near the U.S. Supreme Court as they demonstrate to highlight immigrant essential worker rights, on May 12, 2021, in Washington, D.C. Photo by Kevin Dietsch/Getty Images

Tsankov said over the years she has seen the DOJ make "inadequate" budget requests that do not take into account the steep amount of work facing judges. While most judges stay within the job due to their passion for the work, Tsankov said she has seen a number of judges leave soon after starting. On some days, she hears four lengthy trials a day and faces little time to prep for the next day.

"It's been described as kind of a traffic court setting with life and death implications," Tsankov said. "So, judges really are struggling in terms of just finding sufficient time to prep their cases."

The lack of "administrative time" to prep between and before cases makes staying ahead of the job a struggle for many judges. And with the backlog, Tsankov's docket of upcoming cases continues to fill. Considering the immigration court system's outdated technology, she expects this problem to only continue if changes are not made.

Tsankov said the courts face a "1950s-style" paper filing system of record-keeping that makes advancing cases cumbersome and time-consuming. And while she said the courts have moved toward addressing this issue, due to tight resources it will take some time for the backlogged cases to be scanned.

Mimi Tsankov
"It's been described as kind of a traffic court setting with life and death implications," Tsankov told Newsweek. As president of the National Association of Immigration Judges, Tsankov can share unique insights on the immigration court system. Federal Bar Association

In addition to the sluggish filing system, Tsankov said immigration courts were further encumbered by their poor technology during the pandemic. Over her roughly 16-year career, she said she had never received a court-approved work laptop until the pandemic. However, that did not come until later, leaving courts partially shuttered for a number of months, adding to the backlog.

As to why the immigration courts of the world's wealthiest nation have operated with outdated technology for so long, Tsankov speculates that part of the reason lies in the fact that the system is under DOJ purview.

"Whenever you get a new attorney general in power, they are empowered to rewrite the immigration law through judicial decision making and the EOIR, the agency within which we exist here at the Department of Justice, they can rewrite the laws through regulation," Tsankov said. "This again creates inefficiencies and delays."

Tsankov speculates that the resources needed by the judges could be stymied by the fact that the DOJ focuses on law enforcement and must respond with political pressures brought on by situations like the historic surge of migrants at the Southwest border in 2021.

Over the past four years, the agency has ramped up its hiring of supervisory judges who primarily oversee the immigration trial judges rather than hearing cases. This hiring does little to support the backlog, said Tsankov, and she instead wishes that the DOJ would invest in hiring more staff who can support the trial judges in mitigating the backlog. This practice has created "tension" within the EOIR, she explained.

To better the nation's immigration courts and to address its 1.6 million pending case backlog, Tsankov said the EOIR must be moved from the purview of DOJ and be allowed to function as an independent entity, free of the political pressures and shifting priorities that often face America's executive branch.

"What we really want to do is create an article one immigration court and we consider that to be the only solution that really is a lasting solution," Tsankov said. "Under an article one immigration court, it would be fully outside of the Department of Justice. It would not even be hopefully in the executive branch. This would be a court that would be operated independently. We would not then be tied to performance metrics, for example. It would be a court that would be similar to a bankruptcy or tax court, for example."

This topic will be explored during the House Subcommittee on Immigration and Citizenship's hearing today.