The Massive Increase in the Immigration Court Backlog
Increasing Legal Complexity
Fourth, federal court decisions have complicated the task facing IJs of deciding issues in removal cases in recent years, slowing the issuance of decisions. For example, GAO cited "EOIR officials" and IJs who:
[H]ighlighted increasing legal complexity as a contributing factor to longer cases and a growing case backlog. In particular, EOIR officials cited Supreme Court decisions in 2013 and 2016, which define analytical steps a judge must complete in determining whether a criminal conviction renders a respondent removable and ineligible for relief.
53
The cases highlighted
54 by the referenced "EOIR officials" did, in fact, complicate courts' application of the "categorical approach" that IJs are required to apply in determining removability on many criminal grounds (
Mathis v. United States, 136 S. Ct. 2243 (2016) and
Descamps v. United States, 133 S. Ct. 2276 (2013)), as well as the standard for determining whether a drug offense is "illicit trafficking in a controlled substance" and therefore an "aggravated felony" under section 101(a)(43)(B) of the Immigration and Nationality Act (INA) (
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013)). In certain instances, those decisions would have mandated numerous remands from the BIA and federal circuit courts, and may have rendered otherwise-ineligible aliens eligible for relief; either scenario would have extended the length of numerous removal proceedings for IJ review and briefing by the parties.
More directly, however, the Ninth Circuit's decision in
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015),
cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016), both increased the number of cases on the immigration courts' dockets in the Ninth Circuit, and gave aliens in that circuit cause to continue to litigate otherwise meritless cases. In that decision, the Ninth Circuit held that aliens in detention for more than six months must receive individualized bond hearings before an IJ to justify their continued detention, and be provided bond hearings every six months thereafter.
55
Under
Rodriguez, an alien is entitled to a bond hearing wherein the
government bears the burden of showing by
clear and convincing evidence that the alien poses a risk of flight or a danger to the community.
56 This is a higher burden of proof than the "preponderance of the evidence" standard, "which only requires a showing that something is more likely than not to be true."
57Moreover, unlike an initial bond hearing, where the alien bears the burden
58 of showing that he or she is not a danger or flight risk, as noted, under
Rodriguez, the government now bears that burden for continued detention past six months. This decision will encourage aliens with questionable cases to continue to fight their cases, knowing that they have a greater chance to be released after six months.
In addition, as noted above:
[T]he percentage of completed cases which had multiple continuances increased from fiscal year 2006 to fiscal year 2015 and that, on average, cases with multiple [] continuances took longer to complete than cases with no or fewer continuances. Specifically, 9 percent of cases completed in fiscal year 2006 experienced four or more continuances compared to 20 percent of cases completed in fiscal year 2015. Additionally, cases that were completed in fiscal year 2015 and had no continuances took an average of 175 days to complete. In contrast, cases with four or more continuances took an average of 929 days to complete in fiscal year 2015.
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Supreme Court rulings have increased the back log...........They can't handle enough cases.
