court

Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It’s the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here’s my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.

In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses.

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There are currently over 1.2 million cases pending before our nation’s Immigration Courts (how many of these cases involve asylum, we do not know). The average wait time for a case is 849 days. What has caused this large backlog, and what can be done to alleviate the long waits in Immigration Court?

There are a number of reasons for the Immigration Court backlog. As with the Asylum Office, the basic reason is that there are too many cases and not enough Immigration Judges (“IJs”) and support staff. But a significant aggravating factor is what Judge Schmidt calls “aimless docket reshuffling” or ADR, which he defines as “arbitrarily or maliciously moving cases around without actually deciding them.” In other words, different Administrations have different priorities, and when Administrations change (or change their priorities), cases get moved around in ways that do not result in their completion, but do result in significant delay. The Obama Administration was responsible for its share of ADR, but the Trump Administration–with its decision to make every case a priority–has turned ADR into high art. Other aggravating factors include increased resources for enforcement without a commensurate increase for the Immigration Courts and a significant influx of asylum seekers from Central America that began in about 2012. One last factor is EOIR leadership (EOIR is the Executive Office for Immigration Review – the agency that oversees the Immigration Courts), which under the Trump Administration has been composed of partisan loyalists who lack the competencies needed to run a large organization.

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