Immigration courts given ‘performance metrics’

At a time when heightened federal immigration enforcement has been one of President Donald Trump’s top priorities in major cities like Chicago and Los Angeles, there still remains a staggering backlog of more than 3 million cases in the nation’s immigration courts.

An Executive Office of Immigration Review directive is taking aim at that backlog by implementing new immigration court performance metrics.

The move has some Indiana immigration attorneys, and one former immigration judge who served for almost a decade, questioning whether the federal government is more concerned with expeditiously pushing cases through immigration courts than fairness and due process.

Jennifer Peyton served for almost a decade as an immigration court judge in Chicago before her controversial firing in July, when she was abruptly terminated without cause by the Trump administration.

Now a partner with Chicago’s Kriezelman Burton and Associates, LLC, Peyton called EOIR’s new metrics unachievable and cruel for judges, especially those that are in understaffed courts.

Peyton said she found it odd that the completion metrics were directed at courts as opposed to individual judges, as was the case during Trump’s first term.

“There isn’t enough staff. This is an impossibility when you have a backlog of 3 million cases and you’re getting new cases left and right,” Peyton said of the memo and its performance metrics.

Sirce Owen, EOIR’s acting director, issued a Sept. 12 policy memorandum that established a list of immigration court performance metrics the director described as needed to refocus the agency on “timely and fairly adjudicating immigration cases.”

To that end, the memo outlined nine performance metrics that will be applied to immigration courts, with an emphasis on compressed timeframes for the completion of immigrant detained removal and asylum cases, as well as the adjudication of all motions, custody redetermination requests and merits hearings.

The memo stressed that the metrics are for courts and the agency “is not reinstating individualized performance measures for Immigration Judges at the present time.”

“It is not novel or unique to apply performance measures to EOIR immigration courts,” Owen wrote.

As of the end of September, Syracuse University’s Transactional Records Access Clearinghouse reported a U.S. immigration case backlog of more than 3.4 million cases, with almost 2.3 million of those being pending asylum hearings.

The Indiana Lawyer emailed Kathryn Mattingly, a press secretary for the U.S. Department of Justice’s Executive Office for Immigration Review, several questions regarding the performance metrics and received an automatic reply that Mattingly was on furlough due to the federal government shutdown.

Her email referred The Lawyer to a U.S. Department of Justice employee, who did not immediately respond to the questions.

Carolyn Grimes, owner of the Law Office of Carolyn Grimes in Carmel, said she didn’t think it was possible to meet the metrics laid out by the EOIR unless the rules of law and process are completely thrown out.

Grimes also noted what she called the “negative tone” of the memo, where Owen slammed critics of similar measures put in place during the first Trump administration and their alleged “pearl clutching” related to immigration judges completing at least 700 cases per year.

She said immigration judges were supposed to be given leeway on a case-by-case basis and pointed out that they are not adjudicating easy cases, with asylum cases involving detailed testimony.

Dallin Lykins, an immigration attorney with Banks & Brower, said it’s always difficult to implement major changes like those outlined in the EOIR performance metrics.

Lykins said how well a court is staffed will play a key role in how successful it may be in meeting the new metrics.

He acknowledged a concern he’s heard from other attorneys is that immigration cases won’t be given the attention and weight they deserve.

“This memo certainly makes an emphasis on getting through cases more quickly rather than getting through cases appropriately,” Lykins said.

Memo critical of Biden administration

Peyton had been appointed by former U.S. Attorney General Loretta Lynch and began hearing cases as an immigration judge in September 2016.

She became assistant chief immigration judge for the Chicago Immigration Court in 2021, and later served as acting assistant chief immigration judge for the Indianapolis court, which opened in January.

When she joined the immigration court, Peyton described it as her dream job and the pinnacle of her career.

“It was pretty traumatic what I experienced this summer,” Peyton said, recounting how she loved her job and felt she was good at it.

Her firing in July prompted Senate Democratic Whip Dick Durbin, an Illinois Democrat and the ranking member of the Senate Judiciary Committee, to issue a public statement rebuking the Trump administration.

“Congressional oversight is not just our right, but our constitutional responsibility to the public. Judge Peyton understood that and made her courtroom available,” Durbin said. “Sadly, her termination is part of a larger campaign to fire experienced, non-political leadership and to prevent congressional oversight of this Administration’s gross abuses of power. We cannot abide these fear tactics—I stand by Judge Peyton and many others like her who have been fired for simply doing their jobs.”

Grimes called the memo’s tone ironic given the administration’s recent mass firings of immigration judges, with roughly 100 immigration judges being removed from their posts since January.

The Associated Press reported the Trump administration is tapping National Guard and Army Reserve lawyers to be temporary immigration judges after firing dozens of existing judges, the latest step in a broader plan that experts warn could harm immigration courts and the military justice system.

Training for the first group of Army lawyers was slated to begin Oct. 6 and training for the second group is expected to start in the spring, several former and current military reserve lawyers said they were told.

Roughly 100 Army Reserve lawyers are expected to participate, with 50 beginning a nearly six-month assignment immediately after their training, according to a Sept. 3 email sent to an Army Reserve attorney and reviewed by The Associated Press.

With only about 600 immigration judges remaining, the Pentagon move would double their ranks. Trump’s sweeping new tax and spending law provided $170 billion for immigration enforcement, including the hiring of 10,000 Immigration and Customs Enforcement employees, but it caps the number of permanent immigration judges at 800.

Immigration judges come from a range of legal backgrounds, including the military, the Justice Department, immigration enforcement agencies, and private practice.

The government previously required applicants to have seven years’ experience before undergoing a lengthy hiring process, then six weeks of training followed by a two-year probation period.

Peyton said the memo’s stated purpose of reducing the nation’s immigration case backlog, it comes down to putting the same resources toward immigration courts as are being directed toward enforcement.

She said for her the answer to decreasing the backlog is not only hiring more judges, but also additional staff, interpreters and people to scan documents.

Peyton estimated that Indianapolis, even as a newly opened court, has probably 50,000 pending immigration cases.

Immigration attorneys skeptical

In announcing the new metrics, Owen said EOIR’s immigration court employees had made substantial progress since January in addressing the nation’s case backlog, which he claimed had “been exacerbated by prior leadership.”

The director said the enormity of the remaining backlog required that the agency implement the performance measures.

“These metrics are intended to determine which immigration courts are operating in an appropriate manner and which may need specialized attention in the form of additional or new court management or personnel, creative thinking and planning, or other relevant action,” Owen wrote.

The metrics will affect every aspect of an attorney’s representation of their client, Lykins said.

Lykins said immigration courts previously were showing more willingness to work with attorneys and their clients and extend deadlines.

He said removal cases usually require a great deal of evidence, the acquisition of documentation from another country and can take a lot of time.

The attorney stressed he was not being critical of immigration judges, but he had apprehensions about the metrics and the accelerated timelines they create for court cases.

“We’re starting to see the effects of those, especially the amount of time judges can allot for a hearing,” Lykins said.

Another impact Lykins sees is that immigration cases are being reopened that were previously administratively closed.

He said it forces him to inform clients that cases closed as long as 10 years ago were now being reopened by the federal government.

“That can bring a great deal of stress, as you can imagine,” Lykins said.

As an attorney, Grimes said she didn’t want to be rushed through testimony with her client.

Most of Grimes’ clients are females who have often suffered through sexual and domestic violence, Grimes noted.

The memo takes away judges’ discretion on which cases they should adjudicate, Grimes said, something she thinks would be the best way to deal with a national case backlog.

Prosecutorial discretion gives the Department of Homeland Security the liberty to dismiss cases involving children in the U.S. under the Deferred Action for Childhood Arrivals policy and people with work documentation waiting on their visas.

“If you only kept people in there with a criminal record, you would be amazed at how quickly that backlog would disappear,” Grimes said, adding there is general agreement that U.S. borders should be secure.•