Asked and Answered . . .

Robert Birach on Immigration

By Steve Thorpe
Legal News

Hilarie Bass, president of the American Bar Association, recently issued a statement on behalf of the organization strongly condemning attempts to establish mandatory case completion quotas for immigration judges. Attorney General Jeff Sessions has suggested the regulation as a solution to an enormous backlog of cases. Robert M. Birach, of Birach Law, P.C. in Southfield earned his JD from WMU-Cooley Law School in 1978 and has limited his practice to the area of immigration and naturalization law for more than 25 years. He is the past chair of the Michigan chapter of American Immigration Lawyers Association (AILA) and served on AILA’s Board of Governors, the Department of Labor liaison committee and is active in AILA’s litigation sub-bar. He lectures on immigration law nationally and is a former adjunct professor of Immigration and Nationality Law at Cooley Law.

Thorpe: The statement points out that many immigration judges have more than 2,000 cases currently on their docket and are scheduling cases as far into the future as 2022. How did the total backlog, estimated at 600,000 cases, get this bad?

Where to start? This is a complex problem that has been snowballing for years. While Jeff Sessions will blame the increase in asylum-seekers at our southern border since 2012, the root cause  of this phenomena predates this by a couple of decades.

In 1986 we had approximately 5 million illegal immigrants. Congress decided to offer a legalization program allowing anyone who entered the United States prior to January 1, 1982 and had resided in the United States since, to be given temporary status which, after meeting certain conditions, would evolve into to permanent status. Concurrently therewith, Congress implemented employer's sanctions, for the first time in US history, against those employing illegal aliens. 3.2 million people took advantage of this, reducing the number of illegal immigrants to 2 million.

It was presumed that the remaining aliens would leave as the new employer restrictions would push them out. Unfortunately, Congress misjudged the high demand for immigrant labor and never set up a process to provide as many legal immigrants or nonimmigrants as the labor markets would be demand in the years ahead. Illegal aliens began pouring across the border for the prospect of employment and the possibly of future legalization laws. Due to a combination of lack of enforcement, due to lack of funding, and the increased demand for foreign labor, legal or illegal, by the end of 2012 we had over 11 million people residing illegally in the United States (the same as today), long before the massive influx of people seeking political asylum along our southern border.

Following an increase in funding for immigration enforcement during the Bush administration the number of people in removal (formerly “deportation”) proceedings had increased to 220,000 by 2009. Due to budget deficits, caused in part by the banking industry bailout of 2008 and the lingering recession, a hiring freeze was imposed on the Executive Office for Immigration Review (EOIR) in 2011, during the Obama administration, which lasted until 2014, resulting in a reduction of the number of Immigration Judges from 272 to 235, one-half of whom were eligible for retirement. Our Courts were already overburdened.

Exacerbating the problem was a little-known provision of the amendments to the Immigration and Nationality Act of 1997 which makes persons who are unlawfully present in the United States for more than one year inadmissible for a period of 10 years, in the hope that this would serve as a deterrent and encourage noncitizens to return to their home countries in a timely fashion. Unfortunately, few noncitizens were aware of this provision until they were placed into removal proceedings, sought to adjust their status based on family relationships, then learned that they had to leave the United States to do so.
Leaving the United States would trigger the 10 year bar. That, in concatenation with the ongoing discussion of possible immigration reform resulted in the filing of tens of thousands of claims for political asylum, many of which were filed in order to ‘buy time” in the hope that beneficial immigration legislation would be passed. (If Congress had simply repealed that provision, which was not having a deterrent effect, it is likely that the Immigration Court backlog could have been reduced by as much as two thirds with eligible noncitizens being willing to accept a grant of voluntary departure, returned to their home country and wait up to one year for a family-based immigrant visa to be issued so that they could return.) About the time all of this was happening we began to see an increase in the number of claims for political asylum along our southern border.

The Immigration Court system was already plugged and, from that point forward, began to back up quickly until, over a period of only 5 years, it has been flooded with new cases to the point where it threatens to become nonfunctional.

In part this was due to increased enforcement of our immigration laws under the Obama administration (don’t kid yourself, Obama removed far more noncitizens than George Bush ever did) and his “last in, first out” enforcement policy designed to return illegal noncitizens to their home countries before they can establish roots and equities in the United States which may later make them eligible for relief from removal and, in part due to a surge of women and children migrating north from the gang control countries of Guatemala, Honduras, El Salvador and southern Mexico seeking asylum in the United States.
The United States is a signatory to the 1967 U.N. Protocol on Refugees. Our treaty obligations are codified in section 207 and 208 of the Immigration and Nationality Act (INA). Our treaty obligations supersede statutory law, Murray v. The Charming Betsey, 6 U.S. 63 (1804). In order to qualify for asylum one must prove that s/he has a reasonable fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, has no right of resettlement in a 3rd country and cannot resettle internally to escape that persecution. The SCOTUS  long ago ruled, in U.S. v. Cardoza-Fonseca 480 U.S. 421 (1987), that a fear is reasonable if there is even a 10% chance that the fear could be realized upon return to one's home country.

What Jeff Sessions refers to as a “loophole in the law undermining the intent of Congress,” allowing those who claim a credible fear of persecution to pursue a claim for political asylum in the United States, is actually a clear and unambiguous expression of congressional intent as it was Congress that put that language into the bill and passed it into law.

While there are unscrupulous attorneys (as there are unscrupulous practitioners in any profession) who would file frivolous (not based in fact) asylum claims to enable a client to remain in the United States for as long as possible, in the hope that they may eventually find some way to remain in the United States legally, those practitioners are, fortunately, very few and far between and only account for a very small portion of the nationwide case backlog. Those who do engage in such fraudulent activities are subject to disbarment before the EOIR and their clients are permanently barred from obtaining any benefit in the United States.

Nonetheless, as more and more people abroad learned of the credible fear option and flee persecution, the number of credible fear claims increased. The fact of the matter is simply that the word has spread and whereas there were only 5,000 credible fear interviews conducted in 2009, with 4,000 noncitizens meeting their burden of proof and being placed into removal proceedings to seek political asylum before a Judge, by 2016 that number increased to 94,000 with 73,000 being placed into removal proceedings. Between the increased number of people making credible fear claims and the Trump administration’s policy of making all noncitizens a priority for removal, and increasing enforcement and detention, we now have approximately 630,000 cases pending before the EOIR. From 1998 to 2008 the number of pending cases held pretty steady at between 120,000 and 180,000 cases. During 2009 to 2013 that number increased from 220,000 to 350,000. From 2014 to 2016 it increased to 550,000. There is no and in sight.

Detention, as a deterrent, is no answer. The US currently detains, on the average, 40,000 noncriminal asylum-seekers per day at a cost of $150 per day or just short of 2 1/2 billion dollars per year. We could put them up in Red Roof Inns for half the price however Red Roof, Inc. did not have the foresight to pay $22,000,000 to lobbyists over the last 10 years, as Corrections Corporation of America and Geo Group did, to convince Congress to house noncitizens in “for-profit prisons.” With the 179% increase of detention of noncitizens in removal proceedings during the first 9 months of the Trump administration, my investment tip of the day is… (figure it out for yourself!)

With the increased detention of noncitizens in removal proceedings and with the Immigration Judges under an obligation to complete all detained cases first, within 60 days, this has resulted in the vast majority of non-detained cases being continued to dates as far out as 2022 depending on the individual court's docket. In Detroit and Cleveland, our cases are being scheduled for 2021 with certain exceptions for cases that have been pending over a certain period of time, which are scheduled as early as 2019, and sometimes even 2018.

Thorpe: Critics say quotas put unfair pressure on judges and limit their discretion. Should any sort of quotas be utilized?

No! To quote Immigration Judge Denise Marks, who testified before Congress a few years back in support of legislation to increase the number of immigration judges to 525, “Practicing in Immigration Court is like trying death penalty cases in traffic court.” Our judges already have unmanageable dockets and are under enough pressure while trying to ensure that those appearing before them receive due process of law as guaranteed by our Constitution. We need to emphasize quality not quantity, fairness, not exigency. People's lives are on the line and we need to understand that “all lives matter” and respect that as did our founding fathers when they drafted our Constitution and the Bill of Rights.

Thorpe: In April, Attorney General Sessions travelled to Arizona and said, “This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” How much of this issue is political rather than legal?

As Paul Schmidt, former appellate judge on the Board of Immigration Appeals and US Immigration Judge recently stated,  “We have no ‘immigration crisis’ in America today. What we have is a series of potential solvable problems involving immigration that has been allowed to grow and fester by politicians and political officials over many years. The Department of Justice’s ever changing priorities, aimless docket reshuffling and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. It is past time for an independent US Immigration Court to be established outside the Executive Branch.”

Thorpe: Liberals and conservatives both condemn the delays, currently almost 700 days per case. The right says it allows undocumented immigrants to live in the U.S. for years. The left says it leaves families in limbo. If both sides want action, why are solutions not happening?

700 days is an understatement.  You can double that and then add half again as much if the noncitizen is eligible to seek relief from removal (add three years for an appeal to the Board of Immigration Appeals if the decision goes against him/her). Seven hundred is an average and includes cases where respondents take a grant of voluntary departure, where cases administratively closed or terminated, or respondents do not show and have an in absentia order entered against them. In nonpermanent resident cancellation of removal cases, the decision has to be held in abeyance for an additional two or three years due to limitations on the number of immigrant visas available so it could take up to six or seven years to complete the case..

Thorpe: The Trump administration says it plans to increase the number of immigration judges from 312 to 449. Is more judges part of the answer?

Yes, but only part we need a lot more than that. When the Obama administration proposed an increase to 525 judges the proposal was shot down by the Republican majority in Congress on the philosophy of “If Obama wants it, he cannot have it” rather than on commonsense policy grounds. The Republican Congress didn’t want to fix the problem, they just wanted to make the other side look bad. If they truly believed that there was an “immigration crisis” in our courts they had the power to fix it by working with the administration to increase the number of judges and support staff but did not. On top of that, even though 88 percent of the immigration judge appointees under the Obama administration (100 percent under the Trump administration) have been from the government sector (as opposed to the private bar) it still takes an average of two years to fill immigration judge position. If I ran my business like the DOJ runs theirs, I would’ve been out of business 20 years ago. (Don’t get me wrong, the Democrats are no better, it was Obama who imposed a hiring freeze on immigration judges in 2011 and his Attorneys General but couldn’t figure out a way to streamline the hiring process).

Thorpe: Bass, in her statement, said “The best way to protect our borders and uphold justice is by fixing our immigration system while providing proper funding and adequate resources.” Agree?

I do. In conclusion, we don’t need to speed up the process, we need to slow it down. I realize this sounds counterintuitive, however if our judges had more time during master calendar hearings to vet the respondents, to determine whether they are legally eligible for the relief they seek, had the time to schedule pretrial conferences, to address such issues as this and to narrow the issues to be tried in court, and if the Office of Chief Counsel was given the necessary prosecutorial discretion to concede that a respondent is eligible for and deserving of the relief sought, we could easily cut the current caseload in half, by pretermitted applications for relief where legal eligibility for that room has not been established, by not going through the motions of arguing against a respondents request for relief where s/he is legally entitled to that relief and clearly merits a favorable exercise of discretion and by cutting the length of our trials in half by limiting argument to only those issues that are in dispute.


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