Opinion - Dedicated dockets can help tackle the massive US immigration court backlog

Yahoo

25-04-2025

Four years ago, the Biden administration announced a dedicated docket program for newly arriving families apprehended after making an illegal border crossing. The goal of the program was to 'decide cases expeditiously' — within 300 days of initial master calendar hearings — without compromising due process or fairness.
I expressed my view of this program at the time, referring to it as a 're-tread of old policies that didn't work.'
By that time, both the Obama administration and the previous Trump administration had established dedicated dockets to adjudicate cases of newly arriving unaccompanied children and families more quickly. Human Rights First claims that these programs were counterproductive, impaired due process, undermined the right to counsel, and led to high rates of in absentia (in their absence) removal proceedings.
In May 2024, the Biden administration announced another dedicated docket program. This one was for single adults apprehended making an illegal border crossing.
For my part, I don't understand why special programs were set up to benefit newly arriving illegal border-crossers in the first place.
Alejandro N. Mayorkas, then secretary of Homeland Security, said that 'Families who have recently arrived should not languish in a multi-year backlog.' I agree, but shouldn't that apply also to millions of aliens who have been waiting up to 10 years for a hearing?
But the Biden administration released those favored groups into the interior of the country under its Alternatives to Detention program, which gave them an opportunity to disappear instead of appearing for their hearings. And many of them did fail to appear.
Access to counsel was another problem, but the need for legal representation isn't limited to dedicated dockets — it is a problem for the regular docket, too. Even so, illegal immigrants do not have a right to counsel in removal proceedings. The Immigration and Nationality Act just provides that they 'have the privilege of being represented, at no expense to the government.'
The dedicated dockets were established in cities with pro bono networks that could provide legal services. But there were 143,532 unrepresented individuals with pending removal cases in these cities when the dockets were established. According to the National Immigration Forum, 'In the first seven full months of the new dedicated docket, only 15.5 percent of participating immigrants (11,225 out of 72,289) had secured legal representation.'
It doesn't make sense to provide preferential treatment to illegal border-crossers. Illegal border crossing is a federal crime. The first commission of this offense is punishable by a fine and up to six months of imprisonment. A second offense is subject to fines and up to two years of imprisonment. Preferential treatment for illegal crossers encourages violations of this law.
Dedicated dockets should be used instead to reduce the immigration court backlog. In fact, Biden might have eliminated the backlog if that had been the objective of his dedicated dockets. The backlog was only 1.3 million cases at the beginning of his presidency; it rose to more than 3.7 million cases by the time he left office.
To the extent that it is feasible, the entire immigration court should be divided into dedicated dockets made up of cases with similar issues — leaving a substantial number of judges free to handle the cases that do not fit into those dockets. For instance, there could be separate dockets for the most frequently occurring persecution claims, for cancellation of removal, for adjustment of status, and so on.
This would be helpful because, in regular dockets, immigration judges have to adjudicate a wide range of issues, including more than 19 forms of relief from deportation outside of asylum claims. The learning curve for handling so many different relief applications is quite steep. In fact, some have called immigration law 'has been called 'the second-most complex area — second only to tax law.' This can be a daunting task, especially for judges who did not have any immigration law experience when they were hired.
It shouldn't be necessary to impose time limits on the judges in dockets for similar issues, or to make any changes in the way the hearings are conducted. The judges would become well familiar with the issues and the legal precedents in their assigned area, which should increase their productivity.
It wouldn't be necessary to hold full hearings for all of the cases in the common issue dockets, either — many immigrants fail to show up for their hearings anyway, which results in disposal of their cases in absentia.
The number of in absentia orders varied in fiscal 2015 through 2024, but it always was quite substantial: The low was 8,539 (10 percent) in fiscal 2021, and the high was 222,223 (34 percent) in fiscal 2024.
A letter signed by 100 organizations that opposed dedicated dockets claims that they result in unfairly issued in absentia orders. According to these organizations, many families are subjected to in absentia proceedings even though their failure to appear was through no fault of their own. This may be true, but an in absentia removal order can be rescinded with a motion to reopen if the failure to appear was due to exceptional circumstances.
The takeaway is that previous administrations should have used their dedicated docket programs to reduce the unconscionably long waiting times of illegal immigrants already in the U.S., instead of to help favored groups of new illegal border crossers. This can be accomplished without impairing due process if the acceleration of case completions is produced by having similar issue dockets instead of by imposing time limits.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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