On January 17, 2018, James McHenry, Director of the Executive Office for Immigration Review (EOIR), issued a memorandum to all EOIR staff outlining new performance measures for the Immigration Courts. This memo rescinds all prior memoranda, establishes new priorities going forward, and sets forth specific case processing goals. The memo is intended to further the principles outlined in a December 5, 2017 memorandum by Attorney General Sessions.
In recent years, EOIR has attempted to prioritize certain types of cases, in an effort to manage the large backlog pending before the Immigration Courts. Unfortunately, as admitted in the memo, those attempts may have resulted in more delays, as cases were moved around to accommodate the changing priorities. This memorandum rescinds all prior designations of priority cases and outlines new priorities for the Immigration Courts.
The memo provides that all cases of individuals in custody, whether it be immigration or criminal custody, are a priority for completion. Cases subject to a statutory or regulatory deadline or a federal court-ordered deadline are also priorities. Additionally, cases subject to an established benchmark in Appendix A of the memorandum (discussed below) are priorities. Unlike in previous memoranda, no specific procedure is outlined for handling priority cases. It merely states that priority cases should be completed ‘expeditiously and without undue delay consistent with due process.’ This is a subjective standard that will likely be interpreted differently by each judge. It is unclear what effect, if any, this will have on respondents in Immigration Court, as IJs are already aware of the need to meet statutory and court-ordered deadlines and to process detained cases expeditiously.
Benchmarks and Performance Measures
The second portion of the memo establishes specific case completion goals that will be used to track the performance of each Immigration Court. While some of the case processing times are statutory, others are goals that are being established for the first time. Appendix A of the memo lists the following specific metrics:
- Eighty-five percent of all non-status detained removals cases should be completed within 60 days of filing of the Notice to Appear (NTA), reopening or re-calendaring of the case, remand from the Board of Immigration Appeals (BIA), or notification of detention.
- Eighty-five percent of all non-status non-detained removal cases should be completed within 365 days (1 year) of filing of the NTA, reopening or re-calendaring of the case, remand from the BIA, or notification of release from custody.
- Eight-five percent of all motions should be adjudicated within 40 days of filing.
- Ninety percent of all custody redeterminations should be completed within 14 days of the request for redetermination.
- Ninety-five percent of all hearings should be completed on the initial scheduled individual merits hearing date.
- One hundred percent of all credible fear reviews should be completed within seven days of the initial determination by an asylum officer that an alien does not have a credible fear of persecution. See INA § 235(b)(1)(B)(iii)(III). One hundred percent of all reasonable fear reviews should be completed within ten days of the filing of the negative reasonable fear determination as reflected in Form 1-863. See 8 CFR § 1208.31(g).
- One hundred percent of all expedited asylum cases should be completed within the statutory deadline and consistent with established EOIR policy. See INA § 208(d)(5)(A)(iii); OPPM 13-02.
- Eighty-five percent of all Institutional Hearing Program (IHP) removal cases should be completed prior to the alien's release from detention by the IHP custodian.
- One hundred percent of all electronic and paper records should be accurate and complete.
The memo acknowledges that some of these goals are ‘aspirational’ and unlikely to be attained in the near future. Additionally, these goals apply prospectively; they do not affect cases currently pending before the court. The faster scheduling of cases could have some positive effects, such as reducing the number of asylum seekers who miss the one-year filing deadline.
However, the memo raises due process concerns. While emphasizing that the case processing goals should be met ‘while maintaining due process,’ the memo does not provide guidance to immigration judges on how to reconcile these competing interests. Advocates should be prepared to assert due process violations where continuances are denied for respondents to retain counsel, obtain documents in support of their case, or allow witnesses to testify. Additionally, while this memo does not create any new, enforceable rights, advocates can continue to oppose unreasonable delays by DHS, including their refusal to produce documents.
With the current administration’s plans to ramp up enforcement efforts, and the termination of DACA and TPS, the Immigration Courts may see a dramatic increase in case filings. Without additional resources, it is indeed ‘aspirational’ for the Immigration Courts to speed up case processing without trampling on due process.