Swift Action to Improve Fairness and Enable Timely Asylum Hearings in Immigration Courts
The United States is capable of welcoming with dignity children, families, and adults seeking protection at the U.S.-Mexico border. The challenges at the border today can be met through measures, recommended by refugee protection experts, to protect children, restart asylum at the border, support case management, unrig asylum adjudications, address root causes of migration, and promote refugee protections regionally. The Biden administration should implement measures to safely and humanely manage the reception of unaccompanied children and asylum seekers.
As part of this effort, the Biden administration should take immediate steps to improve the fairness and timeliness of hearings in the immigration courts. The actions outlined below can help enable asylum cases to move through the system without delays and ensure that asylum seekers have their cases resolved in a timely manner while upholding due process - without imposing counterproductive and failed strategies like rocket-dockets that have only exacerbated backlogs and delays or other policies that have undermined both effectiveness and fairness.
Trump administration policies rigged immigration court hearings against asylum seekers and actually added to the court’s backlogs and resulting delays. It is therefore crucial to quickly undo policies that impede the court from effectively, efficiently and fairly managing its docket, as well as Trump-era policies and Attorney General rulings that were not only designed to render refugees ineligible for asylum, but also layered new and confusing legal standards and evidentiary burdens on already complex adjudications, making asylum hearings unnecessarily long and difficult. While the Biden administration should work with Congress to enact legislation making the immigration courts independent, as the American Bar Association and other organizations have recommended, the Department of Justice’s (DOJ) leadership should - immediately - implement safeguards against politicized hiring and interference, vacate erroneous Attorney General and Board of Immigration Appeals (BIA) precedents, and restore immigration judge authority to manage dockets, and take steps to reduce court backlogs - including by restoring discretion through the use of administrative closure and the termination of cases that can be better resolved through adjudication by U.S. Citizenship and Immigration Services (USCIS) or referral to the asylum office.
The Biden administration should also inject some key game-changing measures into the system that will quickly enable cases to move ahead in a timely manner. These include:
- Surge legal representation and legal orientation presentation capacities, injecting them as early as possible into the process;
- Improve hearing efficiencies through use of pre-hearing conferences and stipulations; and
- Enhance asylum decision-making capacities through asylum and other trainings, ensuring a sufficient number of asylum-trained clerks and legal assistants, and potentially tapping retired or former adjudicators with significant asylum expertise to temporarily serve.
Asylum seekers appear overwhelmingly for their hearings, and court appearance rates are even higher - over 96 percent - when immigrants are represented. Cost-effective and humane case support initiatives that include legal representation and are community-based - not inhumane immigration detention - should be employed.