EOIR Interim Rule Addresses ‘Largest Caseload’ in U.S. History With Temporary IJs

Following the Obama administration’s decision to increase the number of immigration judges deployed to handle cases related to the influx of undocumented migrants in the U.S. southern border area, the Department of Justice’s Executive Office for Immigration Review (EOIR) published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges, with the Attorney General’s approval. 

The interim rule notes that EOIR “is currently managing the largest caseload the immigration court system has ever seen.”  This is due to “attrition in the immigration judge corps and continuing budgetary restrictions” along with a large number of pending cases, the interim rule notes.  Allowing the designation of temporary immigration judges will provide flexibility “in responding to the increased challenges facing the immigration courts.” 

A new TRAC report finds that as of the end of June 2014, the number of cases pending in the immigration courts is at an all-time high of 375,503.  TRAC’s preliminary figures indicated that the number of cases involving juveniles was 41,640, with more arriving daily.  “As of the end of June 2014, the court backlog for juveniles from Guatemala is the largest with 12,841 cases, closely followed by Honduras (12,696) and El Salvador (12,162),” TRAC noted.  According to the TRAC report, the average time for a pending case before an immigration judge is now 587 days.

The interim rule states that temporary immigration judges may include former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms. Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six- month terms. The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience.

Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures. 

EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individual’s training and experience. 

The interim rule is available at http://www.gpo.gov/fdsys/pkg/FR-2014-07-11/pdf/2014-16279.pdf.  The TRAC report is available at http://trac.syr.edu/whatsnew/email.140710.html.