DOJ Finally Gives Immigration Judges Tools to Prune Their Dockets

This April, the acting director of the Executive Office for Immigration Review issued a memo clarifying the requirement of immigration judges to effectively manage their crushing caseloads by dismissing legally insufficient applications for protection from removal or for asylum.

This is the most significant action taken by any administration to give immigration judges the tools that all other judges have in their tool kit to dismiss meritless cases on their existing dockets and swat away specious claims in the future.   

Take the fact that there are over four million pending cases on immigration review docket, and the fact that, in 2022, about 68% of removal and deportation cases resulted in removal orders, and only about 14% of asylum claims were granted. Based on my conversations with immigration chief judges, if immigration judges do their duty, they could trim the existing dockets by up to 70% and could dismiss over 2.8 million cases.   

Tools To Manage Dockets 

For over six years, we have been urging the Department of Justice and administrations across both parties to give immigration judges the same tools that all state and federal judges have to manage their dockets. The three tools are summary judgment authority, the ability to dismiss a clearly non-meritorious case based on the pleadings (the written paperwork filed with the court), and contempt authority. See here, here, here and here.   

In 2023, I testified before the Senate Judiciary Committee’s Subcommittee on Immigration, Citizenship and Border Security urging the adoption of these common sense and much needed reforms. 

Federal Rule of Civil Procedure 12(b)(6) empowers federal judges to dismiss claims that are inadequately pleaded or legally baseless. Each state has a similar rule for its judges.  To determine whether a claim is legally baseless, the court assumes that the facts alleged by the claimant are true.?The court then considers whether those facts satisfy the elements of a viable claim. If the facts as pleaded would not give rise to a viable claim even if they were true, then the court must dismiss the case.  

Additionally, federal courts and all but three of the states’ courts have another tool to eliminate meritless cases early in the judicial process: judgment on the pleadings.  

Federal Rule of Civil Procedure 12(c) gives federal district courts the power to grant judgment to a party based solely on the pleadings. Typically, this tool is used when the parties agree on the underlying facts of a case but disagree about their legal effect. Alternatively, as with a dismissal under 12(b)(6), a court may assume that the facts alleged are true and consider whether they give rise to a viable claim.?The court then applies the law to those facts to determine if a party is entitled to early judgment.  

Then there is contempt authority. In 1997, Congress amended the Immigration and Nationality Act of 1952 and gave immigration judges contempt authority but delegated to the attorney general the duty to issue regulations implementing that authority. Inexplicably, no attorney general has done so to date.   

A judge’s authority is undermined if he or she does not have the power to enforce his or her own rulings, or the ability to hold the parties’ feet to the fire with respect to scheduling orders, motions practice, and other standard directives. If a lawyer on a case knows that the judge cannot do anything to him if he ignores the judge’s rulings, shows up late to court, files sloppy motions, files endless motions to continue or reopen a case, then that lawyer will not have an incentive to follow anything the judge says.  

The contempt power is ancient. 18^th Century English jurist Sir William Blackstone explained that courts must have the power to punish contempt because “without a competent authority to secure their administration from disobedience and contempt, [laws] would be vain and nugatory.” The Supreme Court held that if a party “can make himself a judge of the validity of orders which have been issued, and by his and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.”   

And that’s exactly what immigration judges have become because they don’t have contempt authority, can’t enforce their own orders, and, until April of this year, didn’t have the ability to prune their dockets of meritless cases.  

Why This Matters—It’s the Crushing Numbers 

The immigration court caseload has exploded in size, from no cases in 1984, to 260,000 in 2011, to 876,552 in 2019, to 2.6 million 2023, to over 4 million cases today. Cases with merit, which deserve the court’s time and attention, are lumped in with meritless cases, creating a chaotic and unmanageable docket. This inures to the benefit of those whose cases lack merit but drag on for years and delays justice for those whose cases have merit.   

Despite the immigration courts’ limited subject matter, their caseload far surpasses the caseload of most, if not all, of the nation’s federal district courts. In 2019, there were 424 immigration judges managing 876,552 pending immigration cases. Today, there are over 700 immigration judges spread across 71 courts and three adjudication centers managing more than 4,000,000 cases. Some immigration judges have a caseload of 10,000 more cases each.   

Executive Office for Immigration Review’s New Guidance—Pretermission of Asylum Cases 

The memo begins with the obvious: “EOIR adjudicators have a duty to efficiently manage their dockets. It is clear from the almost 4 million cases on EOIR’s docket, that has not been happening.”   

After directing immigration judgesto take “all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal,” the policy memo states that “aliens in removal proceedings have the burden of demonstrating eligibility for any type of relief or protection from removal,” citing 8 U.S.C. §1229a(c)(4). If the alien fails in his burden, “such application generally can be pretermitted.”   

Pretermission refers to the dismissal of an application without a hearing and is similar to a summary judgment or judgment on the pleadings.   

The memo notes that “there appears to be a misapprehension by adjudicators regarding whether those same principles apply to applications for asylum,” and concludes that “adjudicators may pretermit legally deficient asylum applications without a hearing.”   

We won’t speculate why adjudicators, who are hired by the attorney general, might be a bit gun shy about dismissing asylum cases without a hearing, but the fact is that their caseloads have exploded in the last decade because they failed to prune their dockets. 

Kudos to the Bondi Justice Department and leaders in the Executive Office for Immigration Review for clarifying the rules and directing immigration judges to dismiss worthless cases on their docket. 

Now Attorney General Pam Bondi needs to direct her staff to craft a regulation to give these overburdened judges contempt authority so they can enforce their own orders.   

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