Court Backlogs Research Articles

What Will It Take to Eliminate the Immigration Court Backlog? Assessing “Judge Team” Hiring Needs Based on Changed Conditions and the Need for Broader Reform

Executive Summary This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.

Mediation as a Pre-Trial Dispute Resolution Mechanism: Evaluating Its Efficacy in Reducing Court Backlogs and Enhancing Access to Justice

Mediation as a Pre-Trial Dispute Resolution Mechanism: Evaluating Its Efficacy in Reducing Court Backlogs and Enhancing Access to Justice

Legal bordering of asylum through liminality

Unlike the permanent and legitimizing protections of asylum more widely available to other nationalities, current US immigration law and legal mechanisms maintain large numbers of Central American asylum seekers in a perpetual state of legal limbo and precarity. Those able to argue their case in immigration court are most often denied asylum but increasing numbers are allowed to stay in the US in a legally liminal status. The resulting legal limbo for these would-be asylees subjects them to a permanent state of legal violence in the US’ racialized immigration climate. Analysis of US immigration court outcomes from 1997 to 2022 traces the historical denial of asylum to Salvadoran, Guatemalan, and Honduran nationals. A recent administrative tactic to address the historic immigration court backlog of asylum cases, dismissal of cases, are the latest in a historic pattern of granting Central American asylum-seekers temporary status with no pathway to permanent legal status. We argue that the rapid rise in immigration court dismissals is the latest means of denying asylum and casting Central American asylum seekers into a prolonged state of legal ambiguity in the US. While allowing refugee-migrants who are fleeing violence to remain in the US, these same individuals are excluded from legal protections and are exposed to the racialized violence of living as a criminalized underclass in US society.

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as: Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. The absence of a statute of limitations for civil immigration offenses. Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

The timely administration of justice: using computational simulations to evaluate institutional reforms at the CJEU

ABSTRACT The Court of Justice of the European Union (CJEU) faces a growing backlog of cases and delays in administering justice. Identifying the factors that prolong the resolution of cases is critical for designing successful institutional reforms. In this article, we use a Bayesian model to identify the characteristics of cases, judges, and the Court's internal procedures that affect the duration of cases. Then, we run computational simulations that use our model to estimate the likely effect of potential institutional reforms aimed at reducing the Court's backlog. We offer policy recommendations based on our findings. Our methodology can be tailored to study the efficiency of other domestic and international courts.

Mandatory detention for criminal convictions: The reproduction of racial inequality throughU.S.immigration law

AbstractSince the late 1980s, immigrants convicted of certain criminal offenses have been subject to mandatory detention during their deportation proceedings. Due to court backlog and complicated cases, noncitizens mandatorily detained in this way can be held for years at a time, without any legal right to a bail hearing. While political rhetoric and policy aims of the past three decades have painted so‐called “criminal aliens” as a highly dangerous group from whom the American public needs protecting, the criminal convictions that invoke mandatory detention and likely deportation are actually quite diverse, in large part due to the expansion of the “aggravated felony” ground of deportation to include a wide variety of less serious crimes. Drawing from 40 interviews with lawyers and other legal actors in New York City's detained immigration court from 2017 to 2018, this article explores the effects of aggravated felony–based mandatory detention. I argue that in doubly punishing immigrants who have already served time for criminal convictions, the immigration system funnels criminalized noncitizens—particularly those from poor Black and Latinx communities—toward deportation, perpetuating inequality and upholding existing racial hierarchies.

The Impact of the COVID-19 Crisis on the Dutch Criminal Justice System

This paper tries to ascertain the overall impact of the COVID-19 pandemic on the Dutch criminal justice system. In the Netherlands, the first case of COVID-19 was reported in February 2020. On March 16, 2020, the Netherlands went into its first lockdown which lasted until approximately June 15, 2020. The effect of the COVID-19 crisis on crime is ambiguous. Whereas less crime was expected in the physical world, more crime was expected in the online world due to the crisis. During the first lockdown all government offices were closed, including the court buildings. Only urgent criminal cases were handled by the courts. Urgent criminal cases refer to those cases where the rights of suspects were violated or the safety of victims was endangered. During the first lockdown, the backlog of court cases increased, which adversely affected all criminal justice institutions that were responsible for executing court verdicts, like the prison and probation services. This paper assesses the effect of the COVID-19 crisis on crime and the criminal justice system. First, the effect of COVID-19 on crime is assessed by performing a regression analysis on monthly crime data. Second, using a long-standing forecasting model for the criminal justice system, an estimation is made of the long term impact of the changes in the level of crime, of the shifts towards different types of crime, as well as of the reduction of the prosecutor and court backlogs, and of a possible economic downturn and increasing unemployment for the complete criminal justice system.

Busy bankruptcy courts and the cost of credit

This paper estimates the effect of bankruptcy court caseload on access to credit by exploiting firms’ plausibly exogenous exposure to the largest recorded drop in court backlog in the United States following the 2005 consumer bankruptcy reform. I show that a drop in court congestion reduces the time firms spend in bankruptcy and increases recovery values, which is priced into credit spreads and loan maturities. Consistent with a shock to credit supply, less congested courts increase firm leverage but leave default risk unchanged. A back-of-the-envelope calculation suggests that backlog in bankruptcy courts costs corporate borrowers at least $740 million per year in interest payments.

How has the Covid19 pandemic impacted the courts of law? Evidence from Brazil

We provide empirical insight into the consequences of the Covid19 pandemic for the administration of justice. Drawing on a comprehensive monthly panel of Brazilian labor courts and using a difference-in-difference approach, we show that the pandemic has had a large and persistent deleterious effect on adjudicatory efficacy, leading to a massive decrease in the clearance rate and an increase in court backlogs. The pandemic has affected how courts dispose adjudication cases, expectedly causing a plummeting in the share of disputes resolved via trial hearings and, less predictably, exerting a temporally non-linear effect on the share of in-court settlements. Notably, we find no evidence of an effect of the pandemic on efficacy in enforcement. Although the pandemic led to an increase in the share of new filings requiring enforcement, any effect on the relative use of enforcement to execute court-ordered payments has been intermittent and temporary. The intensity of the pandemic has been an important moderating factor.

The Indian Approach to Criminal Justice: The Role of Traditional Courts as Alternative Dispute Resolution Mechanisms

South Africa and India both struggle with a high crime rate and case backlogs in the mainstream courts. Both countries have a pluralistic system where state law consists of formal law and customary law. Both have mainstream and traditional courts following dispute resolution based on traditional values and principles. The panchayat system in India is comparable to traditional authorities in South Africa. The panchayat system performs judicial-like functions, and traditional courts operate at informal (nyaya panchayat) and formal (gram nyayalayas) levels in the rural areas. The lok adalat system is an alternative dispute resolution mechanism employed by the Indian government to address the high crime rate and court backlogs. Statistics reveal that these alternative justice mechanisms based on traditional values and principles have successfully cleared some backlogs. South Africa is in the process of adopting legislation on traditional courts, and it is envisaged that the Traditional Courts Bill [B1-2017] will soon be transformed into law. In reconsidering traditional courts’ role in the South African criminal justice system, it is worthwhile to explore what the Indian government has been doing in this regard. The main aim is to analyse the Indian approach to criminal justice regarding dispute resolution examples based on traditional laws, namely the panchayat system (nyaya panchayats and gram nyayalayas) and also lok adalats in a comparative context.

Private Juries within the Arbitration Framework: A Third Path in Dispute Resolution

In the context of a global pandemic and a resulting backlog of jury trials in the United States court system, this article explores the potential for employing a private jury system within the context of existing arbitration law to provide a third path for parties seeking an expedient resolution of disputes by juries when impediments exist to jury trial in court. After an introduction and background on the current state of the global SARS-CoV-2 pandemic and its effect on court backlogs, we outline the law applicable to private jury proceedings, including (a) whether an arbitral award predicated on a private jury determination is enforceable; and (b) the requirements and limitations of a private jury award. We then conclude with a brief analysis of the considerations parties seeking to employ private jury proceedings might implement to ensure such a proceeding leads to a full and fair hearing and an enforceable award.

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

Executive Summary This article provides an overview and critique of US immigration and asylum policies from the perspective of the author’s 46 years as a public servant. The article offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens), associate members (lawful permanent residents, refugees, and “asylees”), friends (nonimmigrants and holders of temporary status), and persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and constitutional rights that extend to noncitizens. It ends with a series of recommendations for reform of the US asylum system, and a short conclusion.

Court backlogs: balancing efficiency and justice in Singapore

ABSTRACTIn attempting to eradicate a backlog, can a jurisdiction prioritise court efficiency without affecting substantive justice? This article engages with this question by considering the experiences of Singapore, a common law country in Southeast Asia that overcame a large backlog in the 1990s. The article investigates how efficiency and justice were conceptualised in relevant court reforms. In the beginning of backlog eradication, efficiency took centre stage, but it does not appear to have been considered in isolation. The introduction of business management principles, which could have boded ill for justice, in fact introduced a theme of consumer satisfaction that ultimately developed into a more robust approach to access to justice. Singapore’s experience suggests that the connection between efficiency and justice is not a logically linear landscape, but rather an intertwined relationship in which efficiency and justice find a context-specific understanding.

Creeping compulsion to mediate, the Constitution and the Convention

The court backlog in some European countries has inspired the introduction of compulsory mediation schemes to deal with various commercial claims. The article reviews the developing jurisprudence from various courts throughout Europe, to assess the seemingly relentless public policy move towards compulsory mediation and the implications that this has for commercial parties in dispute, lawyers involved in the process and the administration of justice in Europe. The potential that such an approach could amount to a violation of the rights guaranteed by Article 6(1) of the European Convention on Human Rights, as enshrined within the European Convention on Human Rights Act 2003, and Article 40.3 of the Irish Constitution is analysed. The article ultimately discusses the optimal approach for the courts and the legislature to follow to strike the appropriate balance between strong encouragement and coercive compulsion that would avoid offending constitutional and Convention rights and foster a mediation culture.

Busy Bankruptcy Courts and the Cost of Credit

This paper estimates the effect of bankruptcy court caseload on access to credit by exploiting firms’ plausibly exogenous exposure to the largest recorded drop in court backlog in the United States following the 2005 consumer bankruptcy reform. I show that a drop in court congestion reduces the time firms spend in bankruptcy and increases recovery values, which is priced into credit spreads and loan maturities. Consistent with a shock to credit supply, less congested courts increase firm leverage but leave default risk unchanged. A back-of-the-envelope calculation suggests that backlog in bankruptcy courts costs corporate borrowers at least $740 million per year in interest payments.

Backlogs and litigation rates: Testing congestion equilibrium across European judiciaries

To address the problem of court backlogs, policymakers in many countries have been pursuing reforms to reduce case disposition times and the demand for litigation. Yet Priest’s (1989) congestion-equilibrium theory states that reforms aimed at reducing court delays are offset by an increased tendency to litigate. To test the congestion-equilibrium hypothesis, we use biennial panel data from 36 European countries over the period 2006–2012. Specifically, we estimate (i) a repeated cross-section model using conventional (pooled) OLS, (ii) a standard (static) random-effects panel data model, and (iii) a (static) random effects model using the new method of unconditional quantile regression (UQR) to examine the country-level relationship between litigation rates and court backlogs (measured by the number of pending cases per judge in each country). In accordance with the congestion equilibrium hypothesis, the UQR estimates suggest a negative impact of court backlogs on litigation rates but only in highly litigious countries, insofar as the latter experience a high degree of judicial independence. This shows the need for custom-tailored policy approaches to tackling court delay based on countries’ existing litigation rates.

The One-Year Bar to Asylum in the Age of the Immigration Court Backlog

Imagine being forced to flee your home, with one of your children and your few worldly possessions, and undergoing the perilous journey north to seek safety and protection. Upon arrival in the United States, you are immediately detained and questioned about your intentions in seeking admission to the U.S. You explain that you fear for your life and are seeking asylum protection. You may even undergo a detailed interview with an asylum officer, who finds that you have established a significant possibility of establishing asylum eligibility. You are released from detention to pursue your asylum claim in immigration court. You diligently attend check-ins with an Immigration and Customs Enforcement officer for the next two years and struggle to find affordable legal representation as you await your first court date – scheduled two years after your arrival. When you appear at that court date, without an attorney, you learn for the first time that you were required to file an application for asylum with the immigration court within one year of your arrival. Your failure to do so bars you from asylum eligibility. You are now only eligible for a lesser form of relief and will live in limbo – you will never be reunited with your children, who remain in danger in your home country, you can never travel abroad, and will never become a permanent resident or a U.S. citizen. This is the precise situation faced by thousands of asylum seekers navigating our complex immigration system alone. More than half of the recently arrived asylum seekers, largely women and children from Central America, lack legal representation. At the same time, our immigration courts are overwhelmed, with over 500,000 cases pending and a wait of on average almost two years for the first court hearing. In the meantime, asylum seekers are mandated, by a twenty-year-old rule, to file their asylum applications within one year of arrival. Despite this the U.S. government provides no notice of that requirement and thus asylum seekers, short of securing legal competent counsel, have no meaningful opportunity to file within one year. This is the first article to address the interplay of the one-year filing deadline and the immigration court backlogs. This article is also the first to analyze EOIR’s attempted, but incomplete solution to this problem. In doing so, the article sets out the required complementary reforms that must be taken to ensure access to justice, specifically to provide a fair and meaningful opportunity to apply for asylum for represented and pro se asylum seekers.

A BALANCING ACT FOR THE PROSECUTOR: Restorative justice, criminal justice and access to justice

An international appraisal of prosecutors’ perceptions depicts a uniform tendency for prosecutors to see their role as one of ‘presenting evidence in court to get convictions, rather than promoting problem solving’. Many young law graduates dream of a courtroom battle similar to those in popular television series, which tend to glorify the role of the prosecutor in a dramatic depiction of good versus bad. However, reality soon sets in regarding the numerous challenges faced in the criminal justice system. Court backlogs, high case loads, delays in processing huge numbers of remand offenders, and overcrowded correctional facilities plague the system. It is probably within this context that restorative approaches to justice in the pre-trial phase became attractive for the South African prosecutor. This article examines prosecutorial engagement with restorative approaches to justice, and more specifically the KwaZulu-Natal Justice and Restoration Programme.

Court Backlogs and Crime in India

We analyze the relationship between a ‘weak judiciary’, as measured by the percentage of pending trials, and the propensity to engage in criminal activities. Using state-level panel data for India from 1995 to 2007, we look at the relationship between crime and court backlogs. Our estimations show that there is a positive relationship between backlogs of cases in state High Courts and property crimes but not violent crimes. We argue that policies that increase the number of judges and justice and policing staff per capita are likely to reduce case backlogs by increasing the speed of investigations and case procedures. This in turn would reduce certain categories of crime.

Can markets stimulate rights? On the alienability of legal claims

The alienability of legal claims holds the promise of increasing access to justice and fostering development of law. I develop a principal‐agent framework where litigation funders provide expertise in reducing uncertainty in agents' disutility of production. The model leads to the counterintuitive prediction that litigation funders prefer cases with novel issues, and social surplus is positively correlated with legal uncertainty. Consistent with the model, court backlog, court expenditures, and a slowing in average time to completion are associated with third‐party funding; cases with third‐party funding receive more citations and are reversed less often than comparable cases without such arrangements.