Immigration courts miss a crucial metric for tracking immigrants
A congressional audit found that the Justice Department, which operates immigration courts, lacks data on whether noncitizens have shown up for their hearings.
The U.S. border chaos is mirrored to some extent in the court system that deals with immigration. A congressional audit has found that the Justice Department, which operates immigration courts, lacks data on whether noncitizens have shown up for their mandatory hearings. The case management system of the Executive Office for Immigration Review doesn’t track it. Rebecca Gambler, director of Homeland Security and Justice Issues at the Government Accountability Office, joined the Federal Drive with Tom Temin to discuss.
Interview transcript:
Tom Temin: And this seems like a super important report because whatever we decide is immigration policy. One thing in statute now is that noncitizens have to appear for immigration court hearings. And it would seem basic that they do so. What did you find here?
Rebecca Gambler: Yes. Thank you, Tom. So respondents are expected to appear for their immigration court hearings. And when I say respondents, I mean noncitizens who are charged as being removable from the country for violating immigration law. If respondents don’t appear for their immigration court hearings, they could be subject to legal consequences. For example, they may be subject to what’s known as an in absentia removal order. In that case, a judge could order an individual respondent removed from the country in their absence.
Tom Temin: And what did you find specifically about the system and whether justice is able to even know all of this?
Rebecca Gambler: Thank you, Tom. The Executive Office for Immigration Review, which is in the Department of Justice, does not track or report data on whether respondents appear at their hearings or whether their appearance was waived. And that’s because EOIR’s case management system doesn’t have a function to systematically record that type of information without that function. We heard from immigration court officials that the agency’s case management system has other fields that could be used to indicate whether respondents appeared at hearings. But we found that those other fields aren’t a reliable source for tracking whether or not respondents appeared at the hearing or had their appearance waived by an immigration judge.
Tom Temin: So if they don’t appear, then they are in legal jeopardy, that, I guess, is more compound than the fact of their being illegally in the country in the first place?
Rebecca Gambler: That’s right, Tom. They could be ordered to be removed from the country in absentia in their absence. And any applications they had for relief or protection from removal could be deemed abandoned by an immigration judge in cases when respondents don’t appear for their hearings.
Tom Temin: And we hear all sorts of numbers coming out of television and so on about illegal aliens or people coming into the country, crossing the border. In the course of your work here in auditing the system, did you find that there is a reliable number of how many people are affected here? How many people illegally in the country should be at hearings or have been assigned to hearings?
Rebecca Gambler: So at the time of our reporting, in the summer of 2024, we found that EOIR had a backlog of nearly 3.5 million pending cases. And that’s more than seven times the number of pending cases that the Executive Office for Immigration Review or EOIR had at the beginning of fiscal year 2015. And I would also note that we’ve reported that the effects of that backlog can be significant. Those effects include respondents waiting years to have their cases heard or immigration judges having possibly less time to consider cases.
Tom Temin: Right. And what do we know, if anything? It may be a little bit off topic slightly, but what is the throughput of the immigration courts? I mean, if there’s 3.5 million backlog, how many do they get through in a given year?
Rebecca Gambler: So in our report, we looked at immigration court data from fiscal year 2016 through fiscal year 2023, and we found that the average annual number of initial case completions for non-respondents was about 187,000 cases. So that was the average number of initial case completions per year during that time period that we looked at.
Tom Temin: So in other words, they have a 20-year backlog?
Rebecca Gambler: We didn’t specifically calculate how long the backlog would take to be addressed, but certainly having 3.5 million pending cases in the backlog is significant.
Tom Temin: We’re speaking with Rebecca Gambler, director of Homeland Security and Justice Issues at the Government Accountability Office. And to get back to this EOIR system for tracking this, what do they use the system for and didn’t anyone at this point notice, ‘Hey, we can’t tell who went to court hearings or not?’
Rebecca Gambler: Thanks, Tom. Your question gets at the key recommendations that we made in our report, which is for the Executive Office for Immigration Review to develop and implement a function in its case management system to be able to record whether or not a respondent appeared at their court hearings or whether if they didn’t appear that appearance was waived by an immigration judge. And we also recommended that EOIR, periodically, publicly report data on respondent hearing appearances. And we think implementing those recommendations is important so that the Executive Office for Immigration Review can better track and report data on whether respondents are appearing at their hearings or whether their appearance was waived. Having that data could help EOIR better identify and assess trends and respondents appearing or not appearing and helped provide insights into the court’s caseload. And then, of course, publicly reporting the data would give external users of the data and Congress just more reliable information on the extent to which respondents are appearing for their court hearings.
Tom Temin: This case management system is a distributed system, that is to say, in the Justice Department at the Executive Office for Immigration Review within, I guess, Main Justice and then all of the court locations throughout the country. This is something that everyone can access regardless of where they are in the court system here?
Rebecca Gambler: That’s right. The system that we’re discussing here is the Executive Office for Immigration Review’s case management system for cases, for hearings that appear before or cases that are on the docket for the immigration courts. And so immigration judges use that information to record information on immigration court cases.
Tom Temin: But let me just ask a devil’s advocate question. If the judge reports on the outcome of a hearing, wouldn’t that therefore be prima fascia? That person was there at the hearing and somehow extrapolate that information. I guess you’re saying that’s the problem is that it’s only indirectly able Justice Department is only indirectly able to figure out who was there and who wasn’t.
Rebecca Gambler: That’s right, Tom. And I can speak to that a little bit more specifically. So immigration judges have discretion to continue a case rather than issue and an abstention order when a respondent fails to appear for their hearing. And so in the case management system, immigration judges don’t have a function available to them to record whether or not an individual appeared at the hearing. But they do have the ability to track and enter information on whether or not an individual was ordered removed in absentia. But that’s not a reliable rate of respondent appearance because in absentia removal orders only reflect closed cases. So they don’t include respondents who may have appeared at previous hearings but whose cases are still pending. In absentia rates also don’t include respondents who didn’t appear in a court because an immigration judge waived their appearance or respondents who didn’t appear in court but did not receive an in absentia removal order.
Tom Temin: Right. So therefore, the fact of, yes, they were there for the hearing or no, that needs to be a big button on that screen that the immigration court judges actually have in front of them or the clerks that operate the system and bring people in and out?
Rebecca Gambler: And that’s what we recommended, Tom. We recommended that EOIR should develop this function so that information on whether or not respondents appeared for each court hearing could be recorded in EOIR’s case management system.
Tom Temin: I mean, in effect, you have found something that should be a function of a system. And GAO does that all the time. But you really, it seems to me, uncovered a gigantic information management hole for the Justice Department in one of the most pressing issues of our time.
Rebecca Gambler: We agree. We think that these recommendations are really important for EOIR to implement so that they can have reliable information on whether or not individuals are appearing for their hearings. And if they did not appear for their hearings, whether or not their appearance was waived. And as we discussed, it’s important for external users of EOIR data, like Congress, to have reliable information about whether respondents appeared or not because that can help inform, for example, congressional oversight efforts.
Tom Temin: Right. And what was the department’s reaction to the recommendations?
Rebecca Gambler: The Executive Office for Immigration Review concurred or agreed with both of the recommendations that we made and identified benefits that they thought could occur through implementation of our recommendations.
Tom Temin: And do you have the sense this is something that can be programmed into that system in the state that it’s in now with reasonable alacrity?
Rebecca Gambler: We do. We feel that the recommendations that we’ve made are things that the Executive Office for Immigration Review can implement and through implementation would help them improve their operations.
Tom Temin: So they just have to call those Java programmers and get started?
Rebecca Gambler: We are looking forward to working with the Executive Office for Immigration Review to monitor their implementation of these recommendations.
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Tom Temin
Tom Temin is host of the Federal Drive and has been providing insight on federal technology and management issues for more than 30 years.
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