U.S. Immigration Courts at a Crisis Point

This transcript was generated using AI and may contain inaccuracies. If you notice an error, feel free to email [email protected]. 

[00:00:02.11] - Doris Meissner

Good morning. My name is Doris Meissner, and I am a senior fellow and director of the U.S. Policy Program at the Migration Policy Institute. I'd like to welcome all of you to our briefing this morning, which we've titled U.S. Immigration Courts at a Crisis Point. We're here to discuss a policy brief that MPI published about a week ago that analyzes the major challenges that the courts have faced in recent years. The title of the brief is Breaking the Cycle of Dysfunction at the U.S. Immigration Courts. It builds on work that MPI has done for many years on the court system, and it can be found on our website, www.migrationpolicy.org. MPI is a nonpartisan research organization devoted to evidence-based analysis Dialog and Pragmatic Policy Solutions. I'm going to briefly introduce our speakers and then we will move into talking about the report and ultimately during the final part of the webinar this morning, there will be time for Q&A from the audience. Our first speaker will be Kathleen Bush-Joseph, who is a policy analyst at the Migration Policy Institute. She's the lead author of the report. Secondly, she will be followed by another co-author of the report, Muzaffar Chishti, who is a senior fellow at the Migration Policy Institute, the director of our office at NYU Law School in New York.

 

Thirdly, we're going to hear from Kyra Lilien, who is a former immigration judge. She served in the Concord, California immigration court, which, as you may know, is part of the Executive Office for Immigration Review in the U.S. Department of Justice. Justice. And finally, our final speaker will be Chiqui Sanchez Kennedy, who is the Executive Director of the Galveston-Houston Immigration Representation Project. So we are going to start with Kathleen Bush-Joseph, who is going to tell us about what we have found in the analysis that is in this policy brief. I might say in starting that the challenges of the immigration court system are longstanding. It is nothing new to recognize that there have been backlogs in immigration courts and in immigration court dockets. But what is new is the level and speed with which those cases have— and that backlog has accelerated in the few recent years. So we are now on a glide path to a very different set of numbers and mounting challenges that are somewhat similar to what's been the case in the past, but are new in many ways. And the new in many ways and what that might mean going forward is what we really are focusing on in this piece of analysis.

So Kathleen, please go ahead and tell us more.

[00:03:13.01] - Kathleen Bush-Joseph

Thanks very much, Doris. I'll just add my thanks to everyone for attending today. Really encourage you all to read the brief in full because we have a lot of graphs in there and more detail than we can cover today. But very briefly, I'm going to try to highlight a few takeaways from our research which are based on immigration court data and a lot of the analysis that some of you all on the call today have been putting out. A lot of thanks for that. Super quickly, just going to cover the basics. As Doris said, the immigration courts are located within the Executive Office for Immigration Review or EOIR. EOIR and its appellate body, the Board of Immigration Appeals, are located within the Department of Justice, meaning they are not independent like the federal courts. They're under the executive branch. In the US, we have two entities that are hearing and processing asylum claims. We have EOIR and then we also have USCIS. USCIS is going to handle cases for people who are already in the United States. EOIR is going to hear cases for people who are arriving at the border as a general matter.

If USCIS doesn't grant a case, it can be sent over to EOIR for a judge to decide, which we will come back to later. While we're talking about a system in crisis, I do want to say at the top too that behind these stats are real people trying to navigate a really complex system. We're talking about immigrants, their families, attorneys, judges, and ultimately what we've found is that the system doesn't work well for any of them. And that undermines the credibility of the US immigration enforcement and asylum systems more broadly. That's partly because of these longstanding challenges that Doris was talking about. And I know that everyone wants to hear about Trump's latest moves, but we're gonna talk really quickly about what happened under the Biden administration because a lot of that feeds into what's happening now. And I'll just say that the immigration courts budget has only been about 2% of the immigration enforcement agencies. And so a lot of the challenges that we're seeing are coming from a lack of resources. And that was actually before the One Big Beautiful Bill Act came forward with all of these billions of dollars more for immigration enforcement.

Under the Biden administration, though, this situation at the courts really got a lot worse than it had been before as a result of the record high arrivals of migrants coming to the US-Mexico border, and that led to overwhelmed officials releasing millions of people into the country to await immigration court proceedings. As a result, the backlog of pending deportation cases actually doubled, and the peak of the backlog was 4.2 million pending deportation cases in September of 2024. Of those, 63% of cases had a pending asylum claim. So that's about 2.4 million cases. And in reaction, the Biden administration tried to do a number of things to tackle the backlog, including hiring the maximum number of judges funded by Congress, 735. They also rolled out enforcement priorities, which allowed ICE attorneys, who are the ones that prosecute the cases in court, to deprioritize some cases while prioritizing others, specifically national security and public safety threats, as well as recent border crossers. ICE attorneys use their prosecutorial discretion to decline to prosecute certain cases. And based on our analysis of ICE and EOIR data, we found that ICE reviewed almost 1 million requests for prosecutorial discretion. As a result of those requests, judges closed or paused almost 3,000,000 cases from fiscal year 2021 to 2024.

And while those numbers sound really big, the number of cases coming into the system was actually still outpacing those efforts. So in fiscal year 2024, there were 1.8 million new cases filed at the courts. While judges completed a record number, it was 700,000 cases that they were able to work through. So they weren't able to keep up with these challenges. And one of the biggest points that we wanna make today is that there is this ongoing cycle of dysfunction at the courts as a result of some of what's been happening here. So with the use of prosecutorial discretion, most asylum cases actually weren't decided on the merits. They were closed or paused, meaning that people did not get protection or legal permission to actually stay in the country, but they also couldn't be removed because they weren't ordered deported by a judge. In many cases, people actually ended up filing for asylum, in some cases again at USCIS, so that they could apply for a work permit or have some form of protection in the event of a new administration coming in. We have this situation where some cases are being closed. They're sent over to USCIS, and then what USCIS was doing in many cases was actually sending them back to the courts.

That was because in some cases they had already declined to grant asylum the first time around. And so we have this cycle of dysfunction which is continuing under the Trump administration, but in different ways. So you've probably seen the scenes of people being arrested at courts. Over the summer, people were also being arrested at USCIS and some of these people were quickly deported. But some of these people have actually ended up back in the court system after screening interviews. Once again, we have cases closed out and then restarted later, which obviously is not efficient. This brings me to another really major point that we want to make here, which is that Under the Trump administration, we've seen what I would call countervailing factors. We have some moves that are closing out cases really quickly, including asylum cases being closed without a hearing, but we also have some moves that are actually going to add to the backlog or delay cases further. And with that, I'm referring to the firing of judges, for example. While the administration is talking about bringing in military judges, and there are legal questions about that plan, new judges are slower than more experienced judges.

And many of these arrests that are happening in Los Angeles, Chicago, D.C., Charlotte, they're leading to new cases being filed at the courts. So the Trump administration is trying to do what it can to avoid the immigration courts by processing some people through a faster process called expedited removal. But there are millions of people who have been in the country for decades and they are legally entitled to a hearing in court. So we think that the courts will continue to struggle absent major changes given these systemic issues. And that's another major takeaway that we have here. It's that there have been all of these executive actions that different administrations have tried to take to address these issues at the courts. But ultimately, we think that it is going to take some congressional action. And we review some of the recently proposed legislation. I'll skip over that for time for now because I want to conclude on the point that most people facing these deportation proceedings do not have an attorney. And as of October 2024, there were millions of cases in the system where people did not have an attorney, even though research shows that representation actually improves the fairness of proceedings and it makes them more efficient.

And in asylum cases, as many of you know, we're talking about life or death matters, and there are many children who are in court without representation alone. So hopefully in the questions, um, we could talk about some of the things that you all as attendees might be able to do. And, uh, my colleague Muz is next gonna talk about some of the recommendations that we're proposing for addressing these major challenges.

[00:12:03.17] - Doris Meissner

Okay, thank you so much, Kathleen. Covered a lot of ground very quickly and effectively. Uh, there, as she said, are a lot of details in the report that you, uh, will be interested in, but those are the big points. So Muz is now going to talk about our recommendations. We do have recommendations on what might be done about this, and what I want to say to you in addition about Muz is that he's not only at MPI and has been here now for since MPI's founding, but prior to that did serve as an immigration attorney, has represented clients in court, and so brings a broad background of understanding to these issues as well. Muz, please go ahead.

[00:12:46.16] - Muzaffar Chishti

Thank you so much, Doris, and thank you, Kathleen, for that excellent quick summary, and all of you who have joined us this morning. Our recommendations come in 5 buckets. Uh, first, not surprisingly, is about money. And as we think that there's never a better time to talk about money than the big beautiful bill which just gave $170 billion to immigration enforcement. Uh, immigration court system, EOIR, has been a stepchild of the immigration system for a long time. And we think it's time to put some money into giving a jumpstart for transforming this dysfunctional system that you just heard Kathleen talk about. And we think it can be done through a process called reprogramming of the funds that Congress has actually authorized. Just again, the context that Kathleen just provided, if you look at the budget of the U.S. today, It's about $844 million. If you look at the combined budget of the CBP and ICE, that's about 2.5% of that, of the two agencies' budgets. There's obviously a huge gap between these two important functions in our overall immigration system. Now, this can be remedied, as I said, through this process of reprogramming of funds.

Congress gives agencies the flexibility to make adjustments in spending the money it has appropriated. It can do it within and across agencies as long as they meet the guidelines for thresholds of spending reallocations and they notify Congress. Uh, we therefore think that DHS and DOJ jointly should appropriate funds to fund the new transformation of the immigration court system. We think it should be benchmarked to something related to the spending for enforcement. Some people have argued for about 6% should be the benchmark. Some have argued that we'd need to spend about $12 billion to fund 1,500 immigration judges in the year. But, you know, that should be left for the DOJ and DHS, depending on the actual needs to bring efficiency into our immigration court system. We think that these are money required for training and hiring new judges. That is, in our, in our mind, much more efficient than sending detailed military lawyers to immigration courts for a few brief periods of time. The money that should be spent on immigration judges That argument is equally valid for spending money on training and hiring asylum officers. So reprogram and notify Congress would do it. The second is allowing asylum officers to do all new border asylum cases.

This is a recommendation that came out of MPI. It was actually incorporated in a 2022 rule by DHS, which allows all new asylum cases that come from the border, not to be sent to IJs who are obviously overcrowded, as you just heard. And these are asylum officers who are specialists in immigration law, in immigration asylum law. They are country specialists. And these are non-adversarial proceedings. And we think that they could be completed within 6 months or a year. 6 months is actually the requirement of completion of cases within our law. So we should get closer to what the law requires us to do. It doesn't mean that a decision of the asylum officer should not get any review. People who get denied should get a review at the EOIR, but that review should not be based on a new hearing. It should be based on the record, on the files, unless there are changed circumstances. And we think that this repurposing asylum officers for this, for the adjudication of cases that come from the border, will go a long way in alleviating the backlogs in the court system. The third is that we should prioritize cases.

We just all know that we don't have enough resources to go after national security and public safety threats. To unaccompanied children coming before judges. There has to be a sense of priority. We think that therefore judges should prioritize cases which involve public safety and national security. And in that regard, I think the point that, uh, Kathleen just made of arresting people at the court hearings has created a huge new chilling effect. People are not showing up for their hearings just because they think they're going to get arrested, which then leads to Absentia orders being issued by EIJs, which then leads back to people reopening their cases when they have found a lawyer, does not help the, uh, the immigration court system's backlogs. The fourth point we, uh, recommend is modernizing the system through improved technology. Uh, this is still a paper-based system that just does not make sense today. We think that there's important need to turn it into digital formats, and communication should be done electronically. Right now, that is mostly confined to lawyers. People who don't have lawyers are not able to get access through electronic communication. We think if non-citizens who don't have representation give consent to be notified, uh, uh, electronically, that should happen.

The fifth point we made, and as we always say, every discussion on immigration starts with funding and ends with lawyers. The fifth point we want to make is that there should be access to legal service providers. It's not only the due process dictates that lawyers should be present. It has been many studies of one after another have shown how legal service providers who are present in a case increase The efficiency. We have had legal clinics and attorneys for the day initiatives like that, many of them in the past funded by DOJ, which improved the efficiency and provided some protection to the respondents to those cases. We think all 75 immigration courts in the country should have legal service provider mechanisms like this. This builds upon the extremely impressive record of the private bar and legal service providers both in faith and non-faith communities, which have been doing it for a long time. We do think that improved technology increases the possibility of doing these things. And we think finally that Congress should appropriate money for legal services. We actually— people forget that even in the border security bill, Congress provided money for legal service provision for some class of people like minors.

So we think we should build upon that. And Congress, states, municipalities, and philanthropy should all scale up the funding for legal service providers. All of us have known the last few months that the difference between a quick arrest and a quick removal is presence of a legal service provider. It's an imper— it's really imperative for all of us to provide as much support to legal services as we can as we try to reshape the immigration court system. Thank you.

[00:20:36.18] - Doris Meissner

Okay, thank you so much, Muz. Now we're going to go to our two guest panelists. We always like to get feedback from people who are actually doing the work, particularly on an issue like this. And the first person that we're going to hear from is eminently qualified to be talking about this. It is Judge Kyra Lilien, who has been an immigration judge since 2023 and then was terminated by this administration in July of this year. She brings an extensive background to this work, both from EOIR and the immigration judge experience, but also from having worked in legal services, having worked for courts, Court of Appeals. She's been an asylum officer, and she has worked in the private, in a private law firm. In immigration areas. So we're very, very pleased for you to join us, Judge Lilien. Please tell us your reactions to what you've heard.

[00:21:42.09] - Kyra Lilien

Thank you so much for having me. Good morning. So I'll tell you a little bit about what my experience was like on the bench and the reactions that I do have to the brief that's been put forth. I largely agree with most of it. So, I began— I'm one of the judges that was terminated at the end of my probationary period, so it was just a day or so before I would have concluded my 2-year probation that I was notified of my termination. I began serving on the court in San Francisco, California, and then I transferred to the court in Concord, California when that new court opened in February 2024. And I had a pretty standard docket for judges in the Bay Area. Right now, I think judges are averaging about 7,000 cases in the Bay Area. It might have gone up to about 10,000. We generally have one master calendar hearing per week and then at least 3 merits hearings or individual calendar hearings every day. The master calendar hearings that I presided over usually involved about 50 or 60 cases. I know that in some other courts, like in New York, sometimes there'll be 100 people or more at a master calendar hearing.

At a master calendar hearing, the judge has to give the respondents advisals about their rights and responsibilities. Oftentimes pleadings are taken. It's determined whether or not the person is removable as charged. Any relief from removal they might wish to seek is identified, and many other issues are dealt with at a master calendar hearing. There is a lot of preparation that is required to properly hear so many cases in a 2 to 3 hour period of time. Over the summer, the detentions that began occurring in the courthouses did complicate this work. Personally, I didn't have any respondent detained in my courtroom, but even without that direct experience, I was still impacted by the detentions that were happening in our courthouse. We had to call 911 and have an ambulance come because a woman passed out when her husband was detained. We had ICE officers in full tactical gear literally hiding in the stairwells of our court. We had protesters outside the building clashing with ICE officials trying to block the vans as they left with detainees inside, and there was just an overall climate of fear in the court. It was an extremely tense environment. As was mentioned, there was a definite chilling effect on appearances.

I can tell you that before this detention policy was in effect, I would probably have 85% of people appear for their master calendar hearing in my courtroom. Once the detention started, I would estimate that that number dropped to like 30%. Far, far, far fewer people even dared to come to court for their hearings. It was extremely challenging for an immigration judge to prepare for for that master calendar hearing to anticipate all of the various different crises that could happen and try to hold all of it with dignity and decorum. In the merits hearings that we conducted in my court in Concord, most of the respondents were represented by private counsel by the time they had a merits hearing. And I attributed this to two primary reasons. One is there's a very robust immigration bar in the San Francisco Bay Area. That is not true everywhere in the country. And two, because there were case delays that allowed people to work and earn money and save money in order to pay an attorney. I almost never had a pro bono attorney in court. There are so few resources available to people who are unable to pay a lawyer.

We generally had 90 minutes in which we had to complete a full merits hearing. That's like the whole trial, and it was extremely rare to be able to do that. On that rare day that I could finish a hearing from the beginning to the end, it would be because there were no issues. It would be because respondent had an attorney. The case was very well documented, and all the evidence had been filed before the hearing. The parties would agree in court to limit the testimony and limit the time the court would spend hearing from witnesses. And if I could finish 3 merits hearings in 1 day, I would then take time to issue the oral decisions in each of those cases. So that's an optimal day of maximum efficiency, and it always resulted in a 12-hour workday for me. So it's just impossible to get through all of the hearings and give full due process to both parties in the time allowed. And then in addition, the judges are not just in the courtroom hearing cases, but there are all the motions and written decisions that need to be handled outside of the courtroom. And this is especially prescient right now because DHS is filing motions to pretermit, which is essentially a request for the judge to rule on the case before the hearing, to look at the case and say, there's no way this person's gonna be granted.

I'm gonna deny it and not waste court time having the hearing. So those motions are very substantive. They're dispositive, and it takes a lot of time and resources to address those as well. My experience was obviously complicated by my fear of getting fired. This began in January 2025 and is experienced by all the judges across the country on the bench currently. There initially we started receiving in January and February, we started receiving policy memos from the director of EOIR blatantly insulting the entire immigration judge corps. There were mass firings every few months, usually followed by the DOJ fork in the road email, which essentially said, if you don't like what we're doing, then leave. And I want to bring to everyone's attention the fact that there was another mass firing this past Friday in San Francisco. 5 experienced immigration judges were fired. One was fired in New York, and I've heard one was fired in Boston as well. So the firings are continuing. There's been no explanation to any of us for any of the firings, just that under Article 2 of the Constitution, the Attorney General can fire us. Personally, I had excellent performance reviews.

I had the second highest overall case completion rate at my court, and that's even though I was fired 3, 3 months before the fiscal year ended. I still had the second highest, and my grant rate was in the middle of all the judges at my court. So, just to give you an idea of what it's been like to sit on the bench, And, and now I'd like to just respond to the recommendations in the brief. I do definitely agree with the recommendation for the need for increased funding for immigration courts. The Honorable Dana Leigh Marks years ago coined the phrase that immigration judges hear death penalty cases in a traffic court setting. And it is absolutely true. The stakes are very high and the resources are very limited. We don't just need more immigration judges, we need more staff. The clerks who are to support the judges, um, each clerk is intended to support about 1,000 cases. We now have clerks supporting multiple judges because when new judges were hired, new clerks were not commensurately hired. And then each judge can have 3,000 to 10,000 cases on their docket. So the courts are also very severely hampered administratively.

As was mentioned, I did used to work as an asylum officer. I also trained new asylum officers. I was a training officer, and I have some concerns about the proposal to use asylum officers to handle border cases. I see pros and cons, so I'll just list those for you briefly. As mentioned, some of the pros of having an asylum officer handle the border cases is that it's a non-adversarial setting. And that asylum officers are specially trained in asylum matters specifically. Some of the cons of having an asylum officer handle the border cases are that, first of all, most asylum officers are not actually attorneys. You do not have to have a law degree to be an asylum officer, and one big concern is that asylum officer interviews are not recorded the way immigration court hearings are. There's no official record. In immigration court, we have a digital audio recording system, the DAR, At the asylum office, the interviewing officer takes notes. Usually they just type their notes into a Word document. There's a huge range in how complete those notes might be and how accurate they might be. Also, the officer can change what they've written.

You can't do that in immigration court where whatever is said is recorded. I also have concerns about the accelerated schedule of handling the merits of cases through an asylum officer for people who've just recently arrived through the border. But I think that those concerns that I've raised are things that could be addressed. I don't think that they're fundamentally damning to the proposal. My main suggestion— this is the last point I'll make— about one of the ways that we could really fix the problems in our immigration court is to move the court out of the executive branch of government completely. And reconstitute it under Article 1 of the Constitution. That would be under the management oversight of Congress. This is how our tax courts are run. This is how our bankruptcy courts are run. The federal magistrate judges are all constituted under Article 1. As it stands with EOIR in the immigration courts and the appellate body in immigration court, the Board of Immigration Appeals, Those, as it stands, are under Article 2, which is the executive branch, and with every new administration, the Attorney General and the Board of Immigration Appeals flip-flop on the legal precedent that's governing immigration courts, and this is just tremendous whiplash, which causes a huge waste of time and resources.

The fundament, the law, just flip-flops every time we have a new administration. Last point I wanted to make for you is that currently, and if you haven't seen this, I hope you'll Google it, the Secretary of Homeland Security, which is the prosecutor in immigration court, is recruiting people to serve as deportation judges. That is the phrase that they are using now, not immigration judges, but deportation judges to serve in the Department of Justice. So I just think that is an excellent illustration of the fundamental flaw in having the courts and the prosecutor governed both by the same entity within the executive branch of government. Thank you so much.

[00:32:44.11] - Doris Meissner

Thank you very much, Judge Lilien. You've covered a lot of really important points, and I think we'll come back to a couple of them in the Q&A period. And I am going to tell you right now, as far as Q&A is concerned, before we go to the final speaker, that if you do have questions, please type them into the Q&A or email them to [email protected]. Okay, let me turn now to Chiqui Sanchez Kennedy, who is the Executive Director of the Galveston-Houston Immigrant Representation Project. I'm told, and we have learned, that they are just representing— just celebrating their 5th anniversary, so congratulations on that, Chiqui. The Galveston-Houston area is one that is a very busy area where immigration is concerned, largely or to a considerable extent because of major detention center activity in Louisiana nearby. But Chiqui is a person that has devoted her entire professional career to legal services for immigrants in the nonprofit sector in many other capacities. So, um, Chiqui, let's hear from you about the things that we've been talking about here and, you know, in particular, as Muz has said and as the judge has said, the incredible importance of legal representation and what it is that you are seeing.

[00:34:14.24] - Chiqui Sanchez Kennedy

Great. Thank you so much for having me. I always like to talk about how lawyers are important as a lawyer. I'm the executive director of GIRP, the Galveston-Houston Immigrant Representation Project, and we provide comprehensive immigration legal services in Galveston and Houston. Most of our services are through our Houston office. It's the biggest office by far, and over 50% of our services are for individuals who are in immigration court. So reading this report was very, very interesting to me. Just briefly, what we're seeing now in GIRP in the Houston and Galveston area and and then more broadly in immigration court and my reaction to MPI's brief. That, that's sort of where I'm going to go today. So we are seeing a drastic increase in family separations and the number of individuals being held in ICE custody. And once in ICE custody, or even not, if, if not in ICE custody, the access to representation now is more difficult than ever before. The number one issue our organization is facing in all of our programs— so we represent unaccompanied children, we represent detained adults, community members who seek our services on monthly clinics— and the number one issue that we're seeing is the incredible increase in ICE arrests in the community.

We are seeing many, many people being detained either by driving through traffic stops, even if there is no violation alleged, either traffic or criminal or otherwise. And then individuals going to ICE check-ins, for example, and getting detained during their ICE check-ins. And then once individuals are detained, they're put in, if they aren't already in removal proceedings in immigration court. And that's what this report is about, is the backlog and the dysfunction of the immigration court. And, um, and what we are seeing, um, more than anything is there are so many people being put in detention, yet the ability to get out of detention and access legal representation out of detention is very difficult because there's no longer the right to seek bond. The case law has changed tremendously on people who are eligible to seek a bond, and so many, many individuals are being placed in removal proceedings without access to an attorney. And before I talk about access to an attorney, I do want to talk a little bit about the report and my reaction, because I want to end on, on the access to an attorney. But as I was preparing for this presentation, I had a lot of thoughts.

I was like, finally somebody asked me to talk about what, what I think is going on in the immigration courts and what should we change. Um, and so I put my thoughts on paper and then I read the report and I was actually very, very pleasantly surprised to see that this report was pretty thorough and had addressed many of the things that we're seeing on the ground that are causing delays in immigration court and in processing cases. I think the number one issue that we're seeing, and it has been mentioned almost by everybody here, is that there are no longer priorities, right? That when everybody is a priority, the backlog grows. You cannot possibly move forward on every type of case every day. And we see that On an individual level, you can go into court and, you know, the ICE attorney that's representing the government in the removal proceedings won't even prioritize the legal issues before the court. So, and you go into a hearing and we have to litigate every factual and legal issue in the case rather than really focusing on contested issues, which prolongs hearings. I think Judge Lilien and talked about that a lot.

And it makes the court go much slower than it could otherwise. And so I think that we see the deprioritization and the cases that were previously deprioritized, for example, that were administratively closed or taken off the active docket now being put back on the active docket. Which contributes to, uh, obviously the backlog. And in general, the administration is putting more people into removal proceedings with the elimination of TPS for large numbers of individuals. The number of people that are in an affirmative process, for example, outside of the courts that are in line waiting to have their case, uh, decided by an immigration office Many of those people are being put back into court proceedings as well. And, um, and with the elimination of the prosecutorial discretion, we're seeing that no cases are being quickly removed from the docket unless the case is being removed from the docket in a way that limits or completely eliminates access to due process and the ability to be heard. Heard in court. So that's obviously very problematic. And then finally, I do want to end with the access to representation because that's so important. Um, I have worked in immigration nonprofits since 2008, and my very first program was a program that had bipartisan support, and it had bipartisan support forever until recently, which was the legal orientation program.

So there are two types of legal services that have been really helpful helpful in creating efficiencies in the court, and some are non-representational programs. So this legal orientation program is a program where individuals in detention attend a presentation where they're explained the legal process. They get familiar with how, what their options are and what their rights are in the process, and they can be guided through the process without a lawyer. So that allows one person to help help many people through the process. And over many years, we've gotten feedback from both the courts and the government in general that this program really helps speed things along. Individuals know what's happening when they show up to their first hearing in court. They understand when they're not eligible for something and they won't apply for it, and then they— if they are eligible for something, they have a better opportunity to seek relief in front of the court. And so between those programs being defunded and terminated and also not being allowed access into the detention facilities, coupled with the lack of representation, the defunding of representation for legal service providers, far fewer people have access to representation in court.

We are seeing that, um, that there— well, there was never enough, uh, free legal services to meet the need before, but with the increase of individuals that are being detained and placed into the immigration court system, the defunding of non-representational programs and lawyers has really created just a very large vacuum for legal representation. Representation and even just legal information, which causes inefficiencies in court. And I mean, I know that nationwide there are Court Watch programs and that you would be able to see it instantly, you know, watching an individual go through a super complex document, a legal document, having no idea what that document is about. And having to respond to the allegations against them without even having had a presentation where they're explaining what that document is and what it's saying. I've seen those hearings. I've sat in courtrooms and seen the hearings last, you know, 25 minutes when a person with that information or with an attorney could have been in and out in anywhere from 2 to 4 minutes. So access to representation is by far one of the biggest factors in making the system fair and efficient. And I highly, highly recommend that the MPI recommendations of increasing funding— I loved that recommendation.

I was like, yeah, that's right. Everybody should listen to that recommendation of dedicating funds for representation. I hope that that is something in the near future. Are on the horizon.

[00:43:33.23] - Doris Meissner

Okay, thank you very, very much. Well, we've had quite a tour d'horizon here, and so it's a good basis for questions, and we have a lot of good questions that have come in. So I am going to say again, if you have a question, you can use the Q&A or email it to [email protected]. But let me go into the ones that have already come in, and I'll try to bunch some of these a little bit. But I'm going to stick with you, Chiqui, and we are going to now look for as crisp answers as possible so that we can get through as many questions as possible. Chiqui, could you talk a little bit about what you see happening with children and the detained dockets for children that are in Office of Refugee Resettlement custody. And then I'm going to come back to you with another quick question, but answer that one as quickly as you could if possible.

[[FOR THE Q&A PORTION OF THE TRANSCRIPT, SPEAKERS ARE NOT IDENTIFIED BY NAME. PLEASE SEE THE RECORDING TO IDENTIFY SPEAKERS.]]

[00:44:38.17] - Speaker 5

Yes, so we do represent individuals, children, immigrant children and youth in 3 of the facilities in Houston. And so we attend the detained dockets regularly. Children are being— continue to be fast-tracked through the immigration court system, which means they have hearings faster and their, uh, the document that starts immigration proceedings, which is called the NTA, are being filed a lot sooner than before. And children, um, well, there's a lot of context behind this, but, uh, they are staying in detention longer because releases are more difficult. Um, and so, uh, and with some services and organizations having been defunded, many children, more children than before, are going forward without representation. That is what we're seeing in a nutshell in the immigration courts.

[00:45:33.20] - Speaker 1

Okay. Can you offer any guidance to lawyers who are representing asylum seekers on a pro bono basis who have not had extensive prior experience in those court proceedings?

[00:45:51.06] - Speaker 5

Yes, I mean, there are many technical assistance organizations in the country that are offering free resources and mentorship to, to the level of one-on-one mentorship. And if somebody is taking a case, thank you, yay, amazing, and, and doesn't have access to those resources, please email me. I don't know if you have access to my email address, but I'd be happy to share it with anybody because I can connect you to the right place. But there are mentorship opportunities and resources out there for you.

[00:46:33.03] - Speaker 1

Okay, that's great to know because there are a lot of people that have written in that are trying to ask what they might do and that have started to be helpful. Okay, Kathleen, let me move to you quickly with this question. In the analysis that you did, have you come across any information about plans that might be increasing the numbers and locations of immigration courts?

[00:46:58.22] - Speaker 2

I have not. So if others want to share, if they have information about that, I would welcome it.

[00:47:05.16] - Speaker 1

Okay. Judge Lilien, have you heard anything in that regard?

[00:47:10.17] - Speaker 4

Not exactly. There, uh, on the contrary, there are rumors, um, that, uh, there might be an effort to close the San Francisco immigration court. Um, only rumors, um, but the mass reduction in, uh, the bench in San Francisco, um, definitely fuels those rumors. Um, there are also rumors around here about, um, prisons, a particular prison that's been closed down, about it being repurposed for immigration detention and a court being opened within that prison. Again, these are just rumors, but I haven't heard anything about actually a plan to open new courts. New courts have been opening over the last 5 or so years, but I haven't heard anything about additional new courts No.

[00:48:03.03] - Speaker 1

Okay. Well, let me stick with you and ask you about technology in the courts. From the standpoint of a judge and the things that you were describing about the workload, how has— what kinds of technologies are useful? Are technology investments helpful? And in particular, what's been your experience and your view of remote hearings, WebEx hearings, etc., as a way of dealing with caseloads?

[00:48:40.11] - Speaker 4

Sure, thank you. As was mentioned, people who are represented are able to access the court system electronically. Attorneys can access the case filing system, but pro se respondents cannot. It is infinitely easier to handle a case that doesn't have stacks and stacks of paper files that you have to flip through while you're on the bench, and to have everything in an electronic case file system that you can click through and keep track of the evidence that way. I've had WebEx hearings and in-person hearings, and I think generally one of the, one of the detriments to a Webex hearing is that you can't actually give things to a respondent in court. So particularly when a person is pro se at a master calendar hearing, if they come into the courtroom, I can hand them things like a copy of a blank I-589 asylum application form or a change of address form or a list of legal service providers. And it's much more difficult to provide that to someone when they appear by Webex. Webex. For purposes of testimony, Webex can work just fine. We have often been having interpreters appear by Webex as well as in court, and sometimes it works just fine.

[00:50:06.11] - Speaker 4

I think that overall the technology at EOIR right now is sort of middling, you know. It— in theory it works. In theory Webex is not a problem, but then inevitably there's some sort of connection problem and they're just— it does create a lot of delays. I think that an investment in the technology would probably be beneficial because the structure of it works, but it's not really reliable enough.

[00:50:34.11] - Speaker 1

Okay. All right. Let me turn to you, Kathleen, and ask about, again, from an analysis standpoint, do we have any information about the number of— about rejections delays, approval, denial, etc., based on the different eras, years that we've looked at and the changes that are being made in judges and judge appointments.

[00:51:04.23] - Speaker 2

Thanks very much for this, Doris. And I will just quickly say before getting to this question that in addition to what Judge Lilien was saying, you know, we're recommending and what Muz was trying to highlight that the courts should really come into the 21st century and be able to text and email people their court dates, which would increase appearances. So that's a very basic recommendation that we have that we're hopeful could come about as a result of some changes. Now, on the point of data on delays and denials, I wanna share it. So the data that we were analyzing for this report is publicly available. It's on the EOIR website and you can check out the stats on cases that are granted or denied. The data is incomplete as of right now. So some of it has been updated into November, but some of it is still from this summer. But what we can see as a trend is that there have been more people ordered removed in their absence. And so when we're talking about people being ordered deported, there's a really high proportion of people who may not have known that their court proceedings had actually started because they weren't getting notice of the court case even being filed, perhaps because the wrong address was on file or they didn't have an address when they arrived at the border.

[00:52:43.01] - Speaker 2

Some people may be trying to avoid the court process. They may be trying to avoid being arrested or getting an interaction with the system. But it is very concerning that I think the update was that some 300,000 removal orders were issued in absentia. In fiscal year 2025. And just to close the loop here on what this means for the enforcement system, um, that means then that ICE or Border Patrol officers have to try to go out and find people in order to then remove them. And a lot of people are going to perhaps try to reopen those orders, which can lead to more delays for the courts. So this is a really major issue.

[00:53:35.08] - Speaker 1

Okay, Muz, let me turn to you on a couple of questions. There have been quite a number of questions about federal court oversight of the immigration court system, and one of them that is probably critical with recent changes does have to do with post-Chevron. And the question is, what is the, what is the impact of the kinds of changes that are taking place right now vis-à-vis the ability for there to be, or the chance for there to be federal court review of these administrative decisions now in a post-Chevron era?

[00:54:21.14] - Speaker 3

So, you know, Lilien is better positioned to answer this from from straight, um, sort of lawyer's perspective, the only time federal courts get involved in any review of immigration court justice is when it goes through the appeal process. Uh, immigration judge's order is reviewed by the Board of Immigration Appeals, which is still within the Executive Office of Immigration Review, so which is not as independent as other federal courts. If you want to appeal a decision from the Board of Immigration Appeals, then you can go directly to the Courts of Appeals. The only time a federal district court judge gets involved, if someone is seeking a habeas sort of proceeding for them getting out of detention. At the federal Courts of Appeals, they do get to look at the record of the immigration courts. And that's, I think, why many of of the Courts of Appeal judges in the last many years have been very disturbed by the quality of the decision-making at the EOIR, that they found that many of the cases were done very poorly with very little evidence, and many of the cases were never represented. I mean, in fact, the call for the crisis of immigration legal services in our country was made by appeals court judges Judge Katzmann here in the Second Circuit more than anyone else.

[00:55:46.13] - Speaker 3

And his didn't come from— his came from just experience at the Courts of Appeals, looking at the records in the cases as to how so many cases were brought to the Courts of Appeals because they were unrepresented. So that is, I think, the only place right now for the federal courts to provide some review. It is still a very important place, but the point we should all make, they will never reach the courts of appeals unless there is a lawyer willing to take your appeal all the way to the courts of appeals. So the presence of lawyers, again, even for this issue, is never more important than it has been before.

[00:56:25.23] - Speaker 1

And does it— is it— does the Chevron decision—

[00:56:27.24] - Speaker 3

so the Chevron— I'm sorry, I missed it. The Chevron decision essentially, you know, is good news and bad news for people who where the, the, the BIA in the past was immediately recommending removal, you now have a Supreme Court saying that you should not give the same deference to the agency as you did in the past. So there's more freedom now in the courts of appeal judges to reverse an immigration judge's BIA than was in the past.

[00:56:58.04] - Speaker 1

I see. Okay. All right. We've, we've We've reached our hour limit, but there are quite a number of additional questions. So for people that need to drop off, we're sorry that we haven't gotten through more questions, but we can stay on for 5 to 10 minutes and try to cover a few more of these, and we will do so. So let's go ahead, Muz, as long as you're on the screen, I'm gonna give you another question here, which does have to do with with the point that Judge Lilien made about the immigration courts being part of the executive branch and therefore subject to pendulum swings. The counter-proposal on that has been for a long time what she explained, which would be for the immigration court system to reside in the judicial branch rather than the executive branch. Any thoughts or reflections on that that you might want to add or could add?

[00:57:58.13] - Speaker 3

Well, this has been, you know, debate for a very long time. I think there are people who are concerned about the independence of the immigration court system, and we all just heard enough arguments why that is obviously a problem. Whether there is an, you know, this depends on how much appetite there is in Congress to provide independence to the court. We think at MPI, It's a very heavy lift. But until there is some kind of groundswell of support for a truly immigration court, and I think the numbers will have to go considerably down. I mean, this kind of volume of a court cannot be done by an Article I court. It's just a reality check. And as long as the numbers are probably at a manageable level where they can go to an Article 1 court, I think we could argue about it. I think till then we should improve the current system and grant it efficiency and integrity as much as we can. That's why at the MPI we have sought reform proposals within the system. There are enough proposals to do the reform within the immigration system. So I would suggest that Yeah, in an ideal world, it'd be good to go to Article 1 courts.

[00:59:17.01] - Speaker 3

I'm not sure we are in an ideal world right now on that. But till then, there is tremendous need for improving the system as it is.

[00:59:28.02] - Speaker 1

Okay, Chiqui, let me come to you on the issue of language and language access. We have a question on the about the state of language access in asylum hearings, detention centers, and the availability of the court documents in languages other than English. What is your experience with that?

[00:59:53.10] - Speaker 5

If you don't mind, I want to answer that question and then also sort of piggyback on what was said about the flip-flopping of the law. But language access, it depends very much on where you are. So, Immigration court versus an immigration detention facility versus USCIS, which is an immigration agency that determines and decides immigration benefits. Access to interpretation in court is always provided. Documents in their native language, you know, individuals are being— now we're seeing a lot of people that are being explained documents in English or not in their native language and signing. We had somebody as recently as 2 weeks ago sign their deportation and their son's, who was in a separate process because the individual was not explained what he was signing in his native language, which was not either English or Spanish, and it was explained to him in both of those languages. And so access to interpreters in affirmative processes when you're not in court is much more difficult because you have to bring your own interpreter, which can be very difficult for individuals. And the last thing that I'm going to say is for individuals that are detained and they— the interpretation can be very difficult to access just because of access to, for example, phones and client— attorney-client meetings being in a location of the facility that a phone cannot be present to call an interpreter.

[01:01:37.04] - Speaker 5

And so it really depends on where you are, what kind of access to language, your native language, you have. I think that when someone is not represented and then they are in the custody or interacting with an immigration official, it is very unlikely that they will be explained their documents fully in their native language unless it's English or Spanish.

[01:02:05.14] - Speaker 1

Okay, you said you had wanted to come in.

[01:02:08.17] - Speaker 5

Yes, I did want to— yeah, I wanted to mention a real-world sort of example Judge Lilien mentioned the flip-flopping of the law, um, because the courts are, uh, and, and the law can change throughout administrations. I have a client that has now been in the court process since 2013, and her case has, um, gone up and down on appeals because the law has changed each each time that the case is finally before a judge or an officer that's hearing the case, and it's still pending. And so that is like a very real-world example of how the flip-flopping of the law with each administration can have an impact on an individual and their ability to have finality in their case.

[01:03:05.15] - Speaker 1

Good example. And some of these cases do just— I mean, you know, the report finds that the average for asylum cases now is 4 years, but once you get into appeals and then the kinds of circumstances you're describing, it can go on for far longer than that. And even 4 years, of course, is really too long for so many reasons that we've already talked about. Judge Lilien, let me turn to you with a pretty much informational question. Is it required for a sponsor to attend court in the case of minors? Is it required for a sponsor to attend, or can a minor go with a family friend? Some sponsors are scared to attend due to their legal status.

[01:03:57.18] - Speaker 4

I don't think that it is required for a sponsor to attend the court. I had unaccompanied minors appear with other family members or friends or neighbors. I assume the question is referring to unaccompanied minors who are still minors.

[01:04:17.19] - Speaker 1

I think so, yes. I think that is— we would assume that, right?

[01:04:21.05] - Speaker 4

I think the judge might want to confirm that they are in the care of their sponsor. But I don't believe it is required. I'm not 100% sure, honestly, but I don't believe it is required that the sponsor come to court.

[01:04:35.19] - Speaker 1

Okay, let me ask you another question that we've been talking so heavily about asylum cases, and, you know, asylum cases are 63%, best we can tell, of the court's caseload. Right now, so that is the dominant kind of proceeding that you're dealing with. But what other kinds of cases do you deal with as a judge?

[01:05:02.01] - Speaker 4

Um, I think that the second most common case that I was seeing in a non-detained court are applications for cancelation of removal for non-legal permanent residents. So that's a case where a person has lived in the United States for at least 10 years continuously, and they have a U.S. citizen or legal permanent resident spouse, parent, or child who would suffer hardship if they were removed from the United States. Um, the trouble with this form of relief, uh, from the respondent's perspective is that, um, the hardship standard that they have to prove is very high. It's, um, uh, extraordinary and extremely unusual hardship. So it's very different from what any other family would face if they were to suffer a removal from the United States. And there's a congressionally imposed cap on how many cases can be granted each year. So there's actually a very long waitlist. So even if the judge grants relief to someone in that situation, then they go on this waitlist to see if they can actually get the relief. And the relief would be legal permanent residence. I think the wait's about 5 years now. One of the things that happens is that qualifying relative, like that, for example, potentially disabled US citizen child, could age out while the person is on the waitlist.

[01:06:21.16] - Speaker 4

Then their child passes the age of being a minor qualifying relative and then the whole case falls apart. In addition to cancelation of removal, we would sometimes— I mean, very rarely but sometimes see an application for adjustment of status, basically through a family member. Those cases can also be handled by USCIS, so a lot of times the removal proceedings would be terminated or administratively closed so that they could proceed before USCIS. And in the detained courts, there are a lot more cases involving criminal convictions. So that might be a situation where someone's here with their legal permanent residency and they've sustained a conviction that renders them deportable from the United States. So on the detained dockets, they see more of that sort of a case. On the non-detained court, like where I was working, I didn't see that many of those cases.

[01:07:20.24] - Speaker 1

Okay, we are really pretty much at the final moment, but I'm going to ask all of you to— I'm going to say 2 questions that are similar here and ask any of you that wish— who wish to comment on it to comment on it, and that will be our— that will be our closeout. Here are the 2 questions: How can we integrate court watch programs across the U.S. to increase due process accountability of IJs, DHS, and court administrators? That's one of the questions. And a related question is, What focus, if any, has been given to supporting state and local initiatives to provide universal representation? Is that a stopgap measure that could substitute for the lack of a national-level measure at this time? Any of you who would want to take a— make a comment about either of those points?

[01:08:21.12] - Speaker 4

If I could comment about the second one, because I am in the Bay Area, this is a fairly progressive area with respect to creating opportunities for legal representation. Following on the model of the Brooklyn Defenders Project in New York, the, I believe it was the Alameda County Public Defender, which was the first office to begin offering direct representation representation, removal defense representation. And then the San Francisco Public Defender began doing that, the Contra Costa County Public Defender, which is where the Concord Court is housed in Contra Costa County. These are county-based initiatives where the public defender's office breaks off basically a branch that is specific to removal defense representation in immigration court. There's, again though, just It's not nearly enough to meet the need, not anywhere near enough to meet the need. We do have here as well public run through the public defender's offices and in conjunction with nonprofits and community-based organizations, some projects to provide pro se legal support. So, for example, helping someone not, not taking on full representation in their case, but at least filling out their asylum application form so that it can get filed. Filed within the 1-year deadline, and so that they can preserve their right to pursue the case.

[01:09:44.17] - Speaker 4

And then also providing advice and counsel through an Attorney of the Day program. So I do think, like, that we definitely see some benefit in the courts from those programs. It's just like a drop in the bucket. One of the public defenders that I was speaking with had raised a proposal that some of the big beautiful bill money should be used to fund the federal federal public defenders to provide the same amount of funding in the federal public defender as is provided for prosecution of these cases.

[01:10:15.09] - Speaker 1

Okay, any other of our speakers have a comment on either of those points?

[01:10:19.15] - Speaker 3

Well, let me just say quickly that I think on the legal representation, you know, hats off to members of my tribe in the bar who are just doing immense work during these very difficult times in removal proceedings. Meetings. But we all know this cannot be done on the scale that needs the moment, uh, by lawyers. Uh, that important infusion of legal service providers who are paralegals, otherwise, you know, providing legal services in different ways, is incredibly important. Therefore, the accreditation program is very important as a complement to lawyers who are providing. There is some speculation The accreditation program may end in this administration. So one more effort to, to put, to, to preserve that program. And I think we should scale up that accreditation training programs as well. And finally, you know, I think some states and cities are, are sort of notching up their, their contributions for legal services. It will not really meet the need for the scale that we need. Therefore, I think philanthropy obviously has to increase their funding. I think regular ordinary citizens have to seize the moment and appreciate the need for legal services at a time when, you know, we are at a crisis point on this.

[01:11:40.18] - Speaker 3

So I would encourage all of us to put our best effort to increase legal services.

[01:11:47.20] - Speaker 1

Well, that's a very good final note, I— we really have now run over time, and so I'm going to close this out by saying thank you to our speakers, thank you to our audience, thank you for outstanding questions, and we're certainly sorry we haven't been able to answer all of them, but we have covered a lot. I will remind you all that the report that's being— that we've discussed today and the recording of this event are and will be available on our website, www.migrationpolicy.org. And with that, I'm going to say goodbye, and again, thank you everyone all around.