Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges
Released: 2017-06-01T00:00:00


Highlights: section_title: Why GAO Did This Study
paragraphs: The Department of Justice's EOIR is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings to fairly, expeditiously, and uniformly administer and interpret U.S. immigration laws.

GAO was asked to review EOIR's management of the immigration court system and options for improving EOIR's performance. This report addresses, among other things, (1) what EOIR data indicate about its caseload, including the backlog of cases; (2) how EOIR manages and oversees immigration court operations, including workforce planning and hiring; and (3) the extent to which EOIR has assessed immigration court performance, including case continuance data. GAO analyzed EOIR's case data from fiscal years 2006 through 2015—the most current data available—reviewed EOIR documentation, interviewed agency officials, and conducted visits to six immigration courts selected to include courts with relatively large and small case backlogs, among other things. GAO also interviewed experts and stakeholders selected based upon, among other things, their published work on the immigration court system.

section_title: What GAO Found
paragraphs: GAO's analysis showed that the Executive Office for Immigration Review's (EOIR) case backlog—cases pending from previous years that remain open at the start of a new fiscal year—more than doubled from fiscal years 2006 through 2015 (see figure) primarily due to declining cases completed per year.

EOIR has taken some steps to address its workforce needs, such as entering into a contract to determine judicial staff workloads, but does not have a workforce plan that would help EOIR better address staffing needs, such as those resulting from the 39 percent of its immigration judges who are currently eligible for retirement. EOIR also does not have efficient practices for hiring new immigration judges, which has contributed to immigration judges being staffed below authorized levels. GAO found that it took an average of 742 days to hire new judges from 2011 through August 2016. By assessing its hiring process and developing a hiring strategy that targets staffing needs, EOIR would be better positioned to hire judges more quickly and address its staffing gaps.

One example of EOIR's efforts to assess court operations is the extent and reasons why judges issue continuances—temporary case adjournments until a different day or time. EOIR collects continuance data, but does not systematically assess them. GAO's analysis of continuance records showed that that the use of continuances increased by 23 percent from fiscal years 2006 through 2015. Systematically analyzing the use of continuances could provide EOIR officials with valuable information about challenges the immigration courts may be experiencing, such as with operational issues like courtroom technology malfunctions, or areas that may merit additional guidance for immigration judges.

section_title: What GAO Recommends
paragraphs: GAO is making 11 recommendations to, among other things, improve EOIR's workforce planning, hiring, and analysis of continuance data. EOIR stated that it agrees with most of the recommendations, but did not specify whether it agrees with individual recommendations. GAO continues to believe that all 11 recommendations remain valid as discussed further in this report.

section_title: Letter
paragraphs: Each year, the Department of Homeland Security (DHS) initiates  hundreds of thousands of cases with the U.S. immigration court system to  decide whether respondents—foreign nationals charged on statutory  grounds of inadmissibility or deportability—are removable as charged;  and, if so, should be ordered removed from the United States or granted  any requested relief or protection from removal and permitted to lawfully  remain in the country. The Department of Justice’s (DOJ) Executive  Office for Immigration Review (EOIR) is responsible for conducting  immigration court proceedings, appellate reviews, and administrative  hearings to fairly, expeditiously, and uniformly administer and interpret  U.S. immigration laws and regulations. A significant and growing case  backlog—the number of cases pending at the start of each fiscal year— before the immigration courts has been the subject of attention by  Congress, immigration court experts and stakeholders, and others.  Additionally, EOIR’s Director has testified that EOIR’s growing pending  caseload is its largest challenge. In particular, according to data EOIR  reported in its Fiscal Year 2016 Statistics Yearbook, the number of  pending cases before its immigration courts grew by 58 percent from  fiscal years 2012 through 2016 to a backlog of more than 500,000 cases  pending at the start of fiscal year 2017. As a result, some respondents’  cases may take years to resolve.

EOIR officials have identified increases in immigration court caseloads  and legal complexity, as well as resource shortages as contributing to the  backlog. However, immigration court experts and stakeholders have cited  additional challenges and the immigration court system’s structure as  adversely affecting the courts’ efficiency and effectiveness. To address  these challenges, various organizations, such as the American Bar  Association and the National Association for Immigration Judges, have  recommended, among other things, management improvements;  incremental reform of the immigration courts within the existing EOIR  structure; and major structural changes, such as creating an immigration  court system independent of any executive branch department or agency.  These and other organizations have suggested that restructuring could  result in various benefits, such as enhanced credibility and organizational  capacity.

EOIR’s quasi-judicial functions are carried out by the immigration court  system, which includes 58 immigration courts located nationwide that are  overseen by the Office of the Chief Immigration Judge, whose  immigration judges preside over removal proceedings to determine  respondents’ removability and eligibility for any relief being sought, and  the Board of Immigration Appeals (BIA), whose members hear and issue  decisions regarding appeals of immigration judge and certain DHS  decisions. Additionally, the Office of the Chief Administrative Hearing  Officer (OCAHO) adjudicates immigration-related employment and  document fraud cases.

In 2006, we reported on trends in the immigration courts’ caseload from  fiscal years 2000 through 2005, how the Office of the Chief Immigration  Judge assigned and managed the immigration courts’ caseload, and how  EOIR evaluated the courts’ performance. We found that despite an  increase in the number of immigration judges, the number of new cases  filed in immigration courts outpaced cases completed, resulting in a case  backlog. Specifically, during this period, while the number of on-board  immigration judges increased approximately 3 percent, the courts’  caseload grew by approximately 39 percent. Regarding caseload  assignment and management, we found that the Office of the Chief  Immigration Judge primarily relied on an automated system to assign  cases to immigration judges within a court, but also considered the  number of newly filed cases and cases awaiting adjudication from prior  years, historical data, and the type and complexity of cases. Additionally,  we found that EOIR evaluated the performance of the immigration courts  based on the immigration courts’ success in meeting case completion  goals, but its performance reporting could be more accurate and  consistent. To more accurately and consistently reflect the immigration  courts’ progress in the timely adjudication of immigration cases, we  recommended that the EOIR Director maintain appropriate  documentation to demonstrate the accuracy of case completion goal  reports and clearly state which cases are being counted in the reports.  EOIR agreed with our recommendations and took actions to implement  them, such as issuing standard operating procedures for generating case  completion goal reports.

You asked us to review EOIR’s management and oversight of the  immigration court system, as well as options for improving EOIR’s  performance, including through restructuring. This report addresses the  following questions: (1) What do EOIR data indicate about its caseload,  including the backlog of cases, and potential contributing factors and  effects of the backlog according to stakeholders? (2) How does EOIR  manage and oversee immigration court operations, including workforce  planning, hiring, and technology utilization? (3) To what extent has EOIR  assessed immigration court performance, including analyzing relevant  information, such as data on case continuances? (4) What scenarios  have been proposed for restructuring EOIR’s immigration court system  and what reasons have been offered for or against these proposals?

To address all four objectives, we analyzed agency documentation,  consulted with immigration court system experts and stakeholders, and  interviewed EOIR and DHS officials from headquarters and six  immigration courts. In particular, we conducted site visits to the Baltimore,  Maryland; Chicago, Illinois; Houston, Texas; Port Isabel, Texas; San  Francisco, California; and Seattle, Washington immigration courts to  observe proceedings and interview EOIR immigration court officials,  including judges, about court management and operations. During these  visits we also interviewed DHS attorneys who represent the government  in immigration proceedings at the courts. Toward maximizing the diversity  of the sites we visited, we selected them to include courts with relatively  large and small case backlogs; relatively high and low case completions  per judge; a large number of detained cases, which are deemed a priority  by EOIR; and that have experienced staffing shortfalls. We also selected  courts in different geographic regions and courts that are proximate to  other courts. Since we selected a non-probability sample of courts to visit,  the information we obtained cannot be generalized more broadly to all  immigration courts. However, the information provides important context  and insights into EOIR’s management of the immigration court system.

To determine what EOIR data indicate about its caseload, including the  backlog of cases, we analyzed data on immigration case receipts and  completions from EOIR’s case management system for fiscal years 2006  through 2015, the most current data available at the time of our review.  We assessed the reliability of these data by reviewing system  documentation, interviewing knowledgeable officials about system  controls, and conducting electronic testing. We determined that these  data were sufficiently reliable for the purposes of our reporting objectives.  We included all immigration court cases received or completed that were  adjudicated by EOIR immigration judges in EOIR immigration courts and  at the BIA. To determine the case backlog, we calculated the number of  cases that were opened in previous fiscal years that remained open at the  start of the new fiscal year. During our six immigration court site visits, we  interviewed DHS attorneys from six offices, twelve EOIR immigration  judges, and five court administrators to determine potential contributing  factors to the case backlog, and how, if at all, the immigration courts’  backlog has affected stakeholders. Additionally, we identified and  obtained perspectives from ten entities that represent other immigration  court experts and stakeholders, the selection of which we describe below,  to obtain their perspectives on potential contributing factors to the case  backlog and how it has affected stakeholders, if at all. Among others,  these included the American Immigration Lawyers Association, an  association of attorneys and law professors who practice and teach  immigration law, and the National Association of Immigration Judges,  which represents immigration judges.

To address our second objective on how EOIR manages and oversees  immigration court operations, a GAO research librarian conducted a  literature search of scholarly, peer-reviewed publications and trade and  industry articles published from 2000 through November 2015 addressing  EOIR’s management of the immigration courts. Following an initial review  to further refine the scope of publications most relevant to this objective,  an additional analyst then independently reviewed these reports to  identify the most commonly cited management issues affecting the  immigration court system. Any differences between their assessments  were reconciled to reach agreement on these management issues. This  process identified workforce planning and hiring, technology utilization,  including the use of video-teleconferencing (VTC) for hearings, and  performance measurement, which is addressed in the third objective, as  the most prominent issues related to EOIR’s management and oversight  of the immigration court system.

To assess EOIR’s workforce planning and hiring efforts, we analyzed  relevant documentation, such as contracts for workforce planning  services as well as personnel files and data containing information on  immigration judge hiring. In particular, we reviewed EOIR data on the number of immigration judges it was authorized by Congress to hire and  the number of immigration judges on board from fiscal years 2006  through 2015 as well as data on timeframes for hiring new immigration  judges from fiscal years 2011 through August 2016. We assessed the  reliability of these data by comparing data in a sample of hiring files with  EOIR-compiled data on the hiring process, as well as gathering  information on the reliability of hiring data from EOIR headquarters  officials. We determined that these data were sufficiently reliable for the  purposes of our reporting objectives. Additionally, we interviewed EOIR  headquarters officials on how EOIR determines its workforce needs and  hires immigration judges. We then assessed EOIR’s workforce planning  and hiring processes against GAO’s key principles for effective strategic  workforce planning and human capital self-assessment checklist, which  provides human capital guidance for agencies.

To evaluate how EOIR utilizes technology in the immigration courts,  particularly its efforts to implement a comprehensive e-filing system and  use of VTC for immigration hearings, we reviewed pertinent agency  documentation and interviewed EOIR Office of Information Technology  (OIT) officials. Additionally, we interviewed immigration court officials in all  six of the courts we visited and observed technology use in three of the  courts. We used this information to assess EOIR’s efforts against best  practices for developing and acquiring technology and best practices  established by the Administrative Conference of the United States  (ACUS) that provide technical, operational, and environmental guidance  on how agencies may implement or improve their use of VTC in  administrative hearings and related proceedings.

To address the third objective, the extent to which EOIR has assessed  immigration court performance, we reviewed documentation on EOIR’s  performance measurement system, including case completion goals and  the Immigration Court Evaluation Program, and interviewed EOIR  officials. We also obtained and analyzed data on immigration case  continuances, receipts, and completions from EOIR’s case management  system from fiscal years 2006 through 2015 to determine the extent to  which these data support EOIR’s performance monitoring activities. As  previously mentioned, we assessed the reliability of these data using a  variety of methods and determined they were sufficiently reliable for the  purposes of this report. We then compared the results of our analysis  against criteria such as Standards for Internal Control in the Federal  Government, EOIR’s most recent strategic plan covering fiscal years  2008 through 2013, and best practices for using performance information  for management decisions.

To address our fourth objective on proposals for restructuring the  immigration court system, we collected information and perspectives from  experts and stakeholders to identify scenarios that have been proposed  for restructuring the immigration court system and reasons offered for or  against them. Specifically, a GAO research librarian conducted a  literature search of scholarly, peer-reviewed publications and trade and  industry articles to identify publications from 2000 through January 2016  containing information on proposals for restructuring EOIR’s immigration  court system. We reviewed this literature and used the following criteria to  assess and select an initial list of experts and stakeholders to interview  regarding restructuring scenarios: relevance of published work to  immigration court restructuring, author’s type and depth of experience,  and rigor of methodology used in the published work. To further develop  the list, we also considered input from our identified experts and  stakeholders, as well as EOIR, on any additional experts or stakeholders  we should interview. To ensure a diversity of perspectives regarding  proposed scenarios for restructuring the immigration court system, we  selected 10 experts and stakeholders from a variety of organizations,  including federal agencies, immigration lawyer and respondent advocacy  groups and individuals, and the immigration judges’ union. These entities  may not be representative of the universe of experts and stakeholders on  the immigration court system and therefore may not represent all views  on this topic; however, their views provide insights on proposals for  restructuring the immigration court system. We also interviewed officials  and reviewed related documentation from existing court and adjudicatory  systems, including the U.S. Bankruptcy Courts, the Social Security  Administration’s (SSA) Office of Disability Adjudication and Review  (ODAR), and the Board of Veterans’ Appeals (BVA) and Court of Appeals  for Veterans Claims (CAVC), that, according to experts and stakeholders,  exemplify various aspects of scenarios proposed for restructuring the  immigration court system. Appendix I provides additional information on  our scope and methodology.

We conducted this performance audit from November 2015 to June 2017  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Immigration Court System Roles, Structure, and Budget
paragraphs: EOIR is an office within DOJ that, subject to the direction and regulation  of the Attorney General, conducts immigration court proceedings,  appellate reviews, and administrative hearings. EOIR was created as a  separate agency within DOJ on January 9, 1983 as a result of an internal  DOJ reorganization to improve the management, direction, and control of  the quasi-judicial immigration review programs that had been within  legacy Immigration and Naturalization Service. This reorganization  placed the BIA and immigration judge functions under the newly created  EOIR independent of the Immigration and Naturalization Service. OCAHO  was established in 1987 by the Attorney General pursuant to the  provisions of the Immigration Reform and Control Act of 1986. EOIR’s  primary mission is to adjudicate immigration cases by fairly, expeditiously,  and uniformly interpreting and administering federal immigration laws.  EOIR immigration judges and the BIA members are responsible for  hearing, and exercising their independent judgment and discretion in  deciding, all cases that come before them.

As previously discussed, EOIR’s primary adjudicatory functions are  housed within the Office of the Chief Immigration Judge, the BIA, and  OCAHO, as shown in figure 1. The Office of the Chief Immigration Judge  provides overall program direction, articulates policies and procedures,  and establishes priorities applicable to the immigration courts. This  office—comprised of approximately 998 full-time employees in 2016—is  headed by a Chief Immigration Judge who carries out these  responsibilities with the assistance and support of three Deputy Chief  Immigration Judges and 14 Assistant Chief Immigration Judges. The  Assistant Chief Immigration Judges serve as the principal liaisons  between the Office of Chief Immigration Judge’s headquarters and the  immigration courts, and have supervisory authority over immigration  judges, court administrators, and judicial law clerks. At the court level,  court administrators manage the daily court operations as well as the  administrative staff, which include clerks and administrative assistants,  among others. The BIA is headed by a Chairman designated by the  Attorney General, who is to direct, supervise, and establish internal  operating procedures and policies of the BIA. The Chairman has various  management authorities, such as providing appropriate training for the  BIA members and staff, and evaluating the performance of the BIA and  taking corrective action where needed.

EOIR has 58 courts nationwide, as shown in figure 2, including courts that  are co-located with a detention center or correctional facility. The sizes  of the immigration courts vary. For example, in fiscal year 2015, the  smallest of the immigration courts—Fishkill, New York—consisted of 1  full-time employee and the largest court—Los Angeles, California—had  approximately 85 full-time employees.

In 2016, the BIA had 237 full-time employees, including 15 BIA Members,  who are the attorneys appointed by the Attorney General to hear and  issue decisions regarding administrative appeals. In 2016, OCAHO had  11 full-time employees. Apart from the Office of the Chief Immigration  Judge, the BIA, and OCAHO, EOIR has additional offices, including OIT,  which is responsible for the design, development, operations, and  maintenance of the agency’s information technology systems.

EOIR’s total appropriation increased every year, except for fiscal years  2011 and 2013, from approximately $199 million in fiscal year 2005 to  approximately $440 million in fiscal year 2017, as shown in figure 3.  Regarding expenditures by component, the Office of the Chief  Immigration Judge spent the highest percentage of total appropriated  funds—about 51 percent—from fiscal years 2012 through 2016. The  BIA’s average percentage of total expenditures from fiscal years 2012  through 2016 was approximately 15 percent, and OCAHO’s the smallest  at less than 1 percent. EOIR’s Offices of Information Technology,  Administration, General Counsel, Legal Access Programs, and Director  made up the remainder of EOIR’s total expenditures for this period.

DHS is responsible for identifying, detaining, litigating charges of  removability against, and removing foreign nationals who are suspected  and determined to be in the United States in violation of U.S. immigration  laws. Within DHS, trial attorneys from U.S. Immigration and Customs  Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) are  charged with representing the U.S. government as civil prosecutors in  removal proceedings before EOIR immigration judges. ICE’s  Enforcement and Removal Operations is responsible for detaining certain  potentially removable foreign nationals pending the outcome of their  immigration court cases and for detaining and removing from the country  individuals subject to an immigration judge’s final order of removal.

section_title: Overview of the Immigration Court Process
paragraphs: If DHS alleges a violation of U.S. immigration law that is subject to  adjudication by the immigration courts (i.e., grounds of removability), it  serves the individual—the respondent—with a charging document, known  as a Notice to Appear (NTA), ordering the individual’s appearance before  an immigration judge to respond to removal charges. DHS also files the  NTA with whichever EOIR immigration court it determines appropriate  and advises the respondent of, among other things, the nature of the  proceeding, the alleged grounds of removability, the right to an attorney at  no expense to the government, and the consequences of failing to appear  at scheduled hearings. While removal proceedings are pending,  respondents may be detained in ICE custody or, if otherwise eligible for  bond, released on bond or conditional parole. Respondents may  request a bond redetermination hearing in which an immigration judge  reviews ICE’s custody and bond decision.

In conducting removal proceedings and adjudicating cases, immigration  judges conduct an initial master calendar hearing to, among other things,  ensure the respondent understands the immigration court proceedings  and provide the respondent with an opportunity to admit or deny the  charge(s) brought against them. If the issue of removability is not  resolved at the initial or follow-on master calendar hearings, or if the  respondent concedes or the immigration judge otherwise determines that  the respondent is removable and the respondent seeks relief or protection  from removal, the immigration judge schedules a merits hearing. During  a merits hearing, the immigration judge may hear arguments as to  removability, if still at issue, and if the respondent is deemed removable,  any claims for, and OPLA opposition to, relief or protection from removal,  such as asylum. Other forms of relief that may be sought during removal  proceedings include adjustment of status, and withholding or cancellation  of removal.

As part of the merits hearing, immigration judges hear testimony and  review documentary evidence from the respondent regarding the facts  and circumstances of their case relative to the statutory requirements for  relief, and any other witnesses, such as family members, friends, or  experts on country conditions; and attend to cross-examinations  conducted by OPLA attorneys. Additionally, the immigration judge may  question the respondent or other witnesses.

Based on the testimonial and documentary evidence in the record, the  immigration judge must then decide whether the removable respondent  satisfies the applicable eligibility criteria for any requested relief, and with  respect to discretionary relief, that the respondent merits a favorable  exercise of discretion. If the judge finds that the respondent is  removable and not otherwise eligible for relief, the judge will issue an  order of removal and the respondent would be subject to removal  pursuant to the judge’s order once it has become administratively final.  Other potential outcomes of removal proceedings include the judge  permitting the respondent to withdraw their application for admission;  granting voluntary departure; or administratively closing, terminating, or  dismissing the case. Immigration judges render oral or written decisions  at the end of immigration court proceedings. EOIR uses its case  management system to internally record events, actions, decisions, and  workflow for all immigration cases. Figure 4 describes the general  process for removal proceedings in immigration courts.

In addition to removal proceedings, described above, immigration judges  conduct other types of hearings as well, including the following:

Credible Fear Review. Arriving and other designated foreign  nationals subject to expedited removal and deemed inadmissible as a  result of seeking entry (or any other immigration benefit) by fraud or  willful misrepresentation, falsely claiming U.S. citizenship, or lacking  valid immigration documents and who express a fear of persecution or  torture, or an intention to apply for asylum, are to be referred by DHS  to a U.S. Citizenship and Immigration Services (USCIS) asylum officer  for a credible fear interview. If the asylum officer determines that the  individual has credible fear of persecution or torture, the individual will  be referred to an immigration judge for further consideration of the  asylum and withholding of removal claim in removal proceedings. If  the asylum officer determines that the individual has not established a  credible fear of persecution or torture, the respondent may request  review of that determination by an immigration judge who may concur  with the asylum officer’s credible fear determination and return the  case to ICE for removal of the individual. However, if the immigration  judge determines that the individual has a credible fear of persecution  or torture, the individual is placed in removal proceedings for  adjudication of their application for relief.

Reasonable Fear Review. If a foreign national who is subject to  administrative removal for conviction of an aggravated felony at any  time after admission, or a reinstated order of removal for having  illegally reentered the country expresses a fear of persecution or  torture if removed, DHS refers that individual to a USCIS asylum  officer to determine whether this individual has a reasonable fear of  persecution or torture. If the asylum officer determines that the  individual has a reasonable fear of persecution or torture, the  individual will be referred to an immigration judge solely for  consideration of the request for withholding of removal (“withholding- only” proceedings); and if the asylum officer determines that the  individual does not have such reasonable fear, the individual may  request a review of that determination by an immigration judge.

Withholding Only. As stated above, USCIS refers foreign nationals  found to have a reasonable fear of persecution or torture to EOIR for  “withholding only” proceedings, during which an individual may apply  for withholding or deferral of removal under section 241(b)(3) of the  Immigration and Nationality Act (INA) or the United Nations  Convention Against Torture. To qualify for withholding of removal  under INA § 241(b)(3), respondents must establish a clear probability  that their life or freedom would be threatened on account of race,  religion, nationality, membership in a particular social group, or  political opinion in the proposed country of removal. An applicant for  withholding of removal under the Convention Against Torture must  establish that it is more likely than not that they would be tortured if  removed to the proposed country of removal. An order granting  withholding of removal does not prevent removal to a third country  other than the country to which removal has been withheld or  deferred.

Immigration judges’ decisions become administratively final at the time of  issuance, if no further action is taken by either party; or when all avenues  for appeal through the BIA, the highest administrative body within DOJ for  interpreting and applying immigration law, or review by the Attorney  General, have been exhausted or waived. The BIA appeals are  reviewed either by a single BIA member or by a three-member panel. In  general, a single BIA member decides the case unless the case falls into  one of six categories that require a decision by a panel of three  members.

The BIA’s decisions can be reviewed by the Attorney General. After  exhausting administrative remedies within DOJ, a respondent may appeal  a final order of removal to the U.S. Court of Appeals for the circuit in  which the immigration judge completed the initial removal proceedings.  There are 13 U.S. Circuit Courts of Appeals (circuit courts), which are  appellate courts that review U.S. District Court and certain administrative  decisions, such as those made by the BIA. Circuit court decisions on the  application of relevant immigration law to particular issues are binding on  the BIA and immigration judges in cases presenting sufficiently similar  factual scenarios that arise within the circuit court’s territorial jurisdiction.

section_title: Immigration Courts’ Caseload Grew Due to an Increased Case Backlog, Posing Challenges to Stakeholders
subsections: section_title: The Immigration Courts’ Caseload and Case Backlog Grew As Immigration Courts Completed Fewer Cases
paragraphs: Our analysis of EOIR’s annual immigration court system caseload—the  number of open cases before the court during a single fiscal year— showed that it grew 44 percent from fiscal years 2006 through 2015 due  to an increase in the case backlog, while case receipts remained steady  and the courts completed fewer cases. For the purpose of our analysis,  the immigration courts’ annual caseload is comprised of three parts: (1)  the number of new cases filed by DHS in the form of new NTAs (also  called new case receipts); (2) the number of other case receipts the court  receives due to motions to reopen, reconsider, or recalendar, or remands  from the BIA; and (3) the case backlog—the number of cases pending  from previous years that remain open at the start of a new fiscal year.  During this 10-year period, the immigration courts’ overall annual  caseload grew from approximately 517,000 cases in fiscal year 2006 to  about 747,000 cases in fiscal year 2015, as shown in figure 5.

According to our analysis, total case receipts remained about the same in  fiscal years 2006 and 2015 but fluctuated over the 10-year period, with  new case receipts generally decreasing and other case receipts generally  increasing. Specifically, there were about 305,000 total case receipts in  fiscal year 2006 and 310,000 in fiscal year 2015. The number of new  cases filed in immigration courts decreased over the 10-year period but  fluctuated within this period. New case receipts increased about four  percent between fiscal year 2006 and fiscal year 2009, from about  247,000 cases to about 256,000 cases, but declined each year after fiscal  year 2009, with the exception of an increase in fiscal year 2014. Overall,  new case receipts declined by 20 percent after fiscal year 2009 to about  202,000 during fiscal year 2015. Other case receipts, such as motions to  reopen, reconsider, or recalendar, or remands from the BIA, increased by  about 50,000 over the 10-year period, from about 58,000 cases in fiscal  year 2006 to about 108,000 cases in fiscal year 2015.

Our analysis showed that EOIR’s case backlog more than doubled from  fiscal years 2006 through 2015. In particular, the case backlog remained  relatively steady from fiscal years 2006 through 2009 and then rose each  year starting in fiscal year 2010. The immigration courts had a backlog of  about 212,000 cases pending at the start of fiscal year 2006 and the  median pending time for those cases was 198 days. By the beginning of  fiscal year 2009, the case backlog declined slightly to 208,000 cases.  From fiscal years 2010 through 2015, the case backlog grew an average  of 38,000 cases per year. At the start of fiscal year 2015, immigration  courts had a backlog of about 437,000 cases pending and the median  pending time for those cases was 404 days.

Further, as a result of the case backlog some immigration courts were  scheduling hearings several years in the future, according to EOIR  documentation. As of February 2, 2017, half of courts had master  calendar hearings scheduled as far as January 2018 or beyond and had  individual merits hearings, during which immigration judges generally  render case decisions, scheduled as far as June 2018 or beyond.  However, the range of hearing dates varied; as of February 2, 2017, one  court had master calendar hearings scheduled no further than March  2017 while another court had master calendar hearings scheduled in May  2021—more than 4 years in the future. Similarly, courts varied in the  extent to which individual merits hearings were scheduled into the future.  As of February 2, 2017, one court had individual hearings scheduled out  no further than March 2017 while another court had scheduled individual  hearings 5 years into the future—February 2022.

The increase in the immigration court case backlog occurred as  immigration courts completed fewer cases annually. Specifically, the  number of immigration court cases completed annually declined by 31  percent from fiscal year 2006 to fiscal year 2015—from about 287,000  cases completed in fiscal year 2006 to about 199,000 completed in 2015,  as shown in figure 6.

According to our analysis, while the number of cases completed annually  declined, the number of immigration judges increased between fiscal year  2006 and fiscal year 2015, which resulted in a lower number of case  completions per immigration judge at the end of the 10-year period.  Specifically, the number of immigration judges increased by 17 percent,  from 212 in fiscal year 2006 to 247 in fiscal year 2015, while the  immigration court caseload increased by 44 percent during the same  period. Further, the number of total case completions per immigration  judge decreased on average 5 percent per year over the 10-year period— from 1,356 per immigration judge in fiscal year 2006 to 807 per  immigration judge in fiscal year 2015. EOIR officials told us that EOIR engaged in hiring during this period and that new judges initially complete  fewer cases as they are learning on the job, which contributed to the  decrease in case completions per judge.

In addition, cases decided by immigration judges on the merits of the  case (merit decisions) declined, while cases completed through  administrative closure of the case increased over this period.  Specifically, the percentage of merit decisions declined from 95 percent of  all cases completed in fiscal year 2006 to 77 percent of all cases  completed in fiscal year 2015. We found that when immigration judges  made merit-based decisions, immigration judges ordered fewer  respondents removed and provided relief or terminated more cases.  Particularly, the percentage of respondents whom immigration judges  ordered removed declined from 77 percent of all completed cases in fiscal  year 2006 to 52 percent of all completed cases in fiscal year 2015.  Conversely, the percentage of cases in which the immigration judge  granted relief or terminated removal proceedings grew from 18 percent of  all completed cases to 24 percent of all completed cases. The  administrative closure of cases grew by 21 percentage points, from 2  percent of completed cases to 23 percent of completed cases over this  same time period.

Initial case completion time increased more than fivefold over the 10-year  period. Overall, the median initial completion time for cases increased  from 43 days in fiscal year 2006 to 286 days in fiscal year 2015. In  particular, the median case completion time doubled from fiscal year 2011  to fiscal year 2012 and then more than doubled again from fiscal year  2012 to fiscal year 2013 before declining slightly in fiscal year 2014.  However, as shown in table 1, case completion times varied by case type  and detention status. For example, the median number of days to  complete a removal case, which comprised 97 percent of EOIR’s  caseload for this time period, increased by 700 percent from 42 days in  fiscal year 2006 to 336 days in fiscal year 2015. However, the median  length of time it took to complete a credible fear case, which comprised  less than one percent of EOIR’s caseload during this period, took 5 days  to complete in fiscal year 2006 as well as in fiscal year 2015. EOIR  officials attributed the increase in case completion times after fiscal year  2011 to the number of relief applications filed by respondents as well as  changes in the types of applications respondents filed. In particular, EOIR  officials stated that asylum and withholding applications increased while  voluntary departure applications decreased.

Initial case completion times for both detained and non-detained  respondents more than quadrupled from fiscal year 2006 through fiscal  year 2015. The median case completion time for non-detained cases,  which comprised 79 percent of EOIR’s caseload from fiscal year 2006 to  fiscal year 2015, grew more than fivefold from 96 days to 535 days during  this same period. Similarly, the median number of days to complete a  detained case, which as discussed later in this report judges are to  prioritize on their dockets, quadrupled over the 10-year period, increasing  from 7 days in fiscal year 2006 to 28 days in fiscal year 2015.

section_title: Stakeholders Cited Various Factors That Potentially Contributed to the Growing Backlog, Which Poses Challenges to Respondents, Attorneys, and Court Staff
paragraphs: EOIR officials, immigration court staff, DHS attorneys, and other experts  and stakeholders we interviewed provided various potential reasons why  the case backlog may have increased and case completion times slowed  in recent years, as well as identified challenges posed by the backlog.  Despite an increase in immigration judges over the 10-year period,  immigration judges, court administrators, DHS attorneys, experts and  stakeholders told us that a lack of court personnel, such as immigration  judges, legal clerks, and other support staff, was a contributing factor to  the case backlog. Further, some of these experts and stakeholders told  us that EOIR did not have sufficient funding to appropriately staff the  immigration courts.

EOIR officials, immigration court staff, DHS attorneys, and other experts  and stakeholders also stated that a surge in new cases, beginning in  2014, contributed to the case backlog. Further, some of these experts  and stakeholders told us that the nature of cases resulting from the surge  exacerbated the effects of the backlog. Specifically, many of the surge  cases were cases of unaccompanied children, which may take longer to  adjudicate than other types of cases because, for example, such a child  in removal proceedings could apply for various forms of relief under the  jurisdiction of USCIS, including asylum and Special Immigrant Juvenile  Status. In such cases the immigration judge may administratively close or  continue the case pending resolution of those matters. Therefore, these  experts and stakeholders told us that the surge not only added volume to  the immigration court’s backlog, but resulted in EOIR prioritizing the  cases of unaccompanied children over cases that may be quicker for  EOIR to resolve. DHS attorneys, experts, and other stakeholders we  spoke with stated that immigration judges’ frequent use of continuances  resulted in delays and increased case lengths that contributed to the  backlog. Immigration judges, court administrators, DHS attorneys, and  other experts and stakeholders we spoke with also cited issues with the  availability and quality of foreign language translation as creating  unnecessary delays in cases. EOIR officials and immigration judges also  highlighted increasing legal complexity as a contributing factor to longer  cases and a growing case backlog. In particular, EOIR officials cited  Supreme Court decisions in 2013 and 2016, which define analytical steps  a judge must complete in determining whether a criminal conviction  renders a respondent removable and ineligible for relief. Additionally,  EOIR officials cited a reported growth in bond hearings for detainees,  particularly in the Ninth Circuit, stemming from that circuit’s 2015 decision  in Rodriguez v. Robbins, which was being reviewed by the Supreme  Court as of April 2017. We examine some of these issues, such as court  staffing, case prioritization, and the use of continuances, later in this  report.

Immigration judges and court staff, DHS attorneys, and other experts and  stakeholders we interviewed stated that the delays caused by the backlog  posed challenges to respondents, attorneys, and immigration judges and  court staff.

Respondents. Seven of the ten experts and stakeholders we contacted  and staff at three of the immigration courts we visited told us that  respondents can face challenges due to long delays in scheduling and  hearing cases and heavy court caseloads. Experts and stakeholders cited  challenges in one or more of the following areas:

The ability of respondents to produce witnesses or evidence or to  obtain pro bono legal representation;

The ability of respondents with strong claims for relief to work or bring  family members to the United States; and

The ability of respondents without sufficient claims for relief to remain  in the United States longer than if the case had been promptly  decided.

Four of ten experts and stakeholders we spoke with told us that case  delays due to the immigration court’s case backlog may decrease  respondents’ ability to produce witnesses or evidence to support their  applications for relief. For example, one of these experts and  stakeholders told us that due to the backlog, merits hearings are  frequently rescheduled. As a result, witnesses for respondents who need  to travel to attend a hearing may be less likely to attend a rescheduled  hearing. Two of these experts and stakeholders also stated that non- detained respondents can also lose track of witnesses who may be able  to assist their cases if a significant amount of time passes between the  respondent’s original merits hearing date and the respondent’s  rescheduled hearing date. Further, according to four of the ten experts  and stakeholders, private bar attorneys may be hesitant to accept pro  bono cases because it is difficult for them to commit to representing a  respondent at a merits hearing that may be scheduled several years into  the future. Additionally, five of the ten experts and stakeholders also  stated that due to the length of some cases, respondents who may have  been eligible for relief at one point earlier in the case may no longer be  eligible by the time the case is heard because the respondents’  circumstances have changed. For example, a respondent who is  otherwise removable may be eligible for cancellation of removal if it would  result in exceptional and extremely unusual hardship to the respondent’s  U.S. citizen or lawful permanent resident spouse, parent, or child.  However, if there is a material change in circumstances regarding a  respondent’s qualifying family member, such as a child who turns 21, this  could adversely affect the respondent’s eligibility for relief.

One immigration judge and two of the ten experts and stakeholders also  noted that delays due to the case backlog may result in some  respondents with strong cases for relief not obtaining the relief to which  they are entitled in a timely manner. For example, one of the experts and  stakeholders told us that some respondents with strong applications for  relief, such as asylum, would generally have to wait to seek derivative  status for qualifying family member(s) not initially included in the asylum  application until the respondent’s own asylum claim has been granted.  In light of the case backlog, which results in some cases not being heard  for years, this may result in further hardship for the respondents with valid  claims for relief. Two of the ten experts and stakeholders told us that  respondents may not be able to work while awaiting their case  decisions. Conversely, two immigration judges, DHS attorneys from  three offices, EOIR officials, and four of the ten experts and stakeholders  stated that the case backlog may also result in respondents without  sufficient claims remaining in the United States far longer than if the case  had been promptly decided. EOIR officials stated that due to the length of  some cases, respondents who otherwise would not have strong claims for  relief can develop a cognizable claim that the respondent would not have  been able to make had the case been adjudicated more quickly, or the  extended time allows the respondent to establish ties to the United States  which could support an existing claim.

Attorneys. DHS attorneys from six offices, one immigration judge, and  one of the ten experts and stakeholders also cited caseload management  and the increased cost of long cases as backlog-related challenges for  private bar and DHS attorneys. DHS attorneys from five offices noted that  it is difficult to assign cases to specific attorneys for the entire life of the  case because they do not know which attorneys will be available when  the merits hearing ultimately occurs, which can be months or years after a  master calendar hearing in the case. According to these DHS attorneys,  they must often assign a new attorney to the case, which requires the  newly-assigned attorney to prepare for a case shortly before the merits  hearing. As a result, according to these same attorneys, the amount of  time spent per attorney in case preparation may increase, which  ultimately increases the cost per case to DHS. In addition, one  immigration judge posited that some private bar attorneys may miss filing  dates due to the backlog and associated delays in hearing cases.

Court Staff. Immigration court officials, experts, and stakeholders we  spoke with cited challenges for immigration court staff, including  increased workloads, limited time for administrative tasks, and decreased  morale. Immigration judges from four of the six courts we visited told us  that delays result in increased work, such as additional motions and  evidence to review for each case, changes in immigration law that occur  over the life of a case that the immigration judge must consider, and  increasingly complicated cases that require more time to complete than if the hearings for these cases had been scheduled and held in a shorter  timeframe. Immigration judges from four of the six courts we visited also  told us that the growing backlog increases the amount of clerical work for  court staff because they must continue to process motions and other  paperwork for pending cases irrespective of when the next hearing date is  scheduled. One immigration judge told us that as cases are pending they  accumulate more filings and ultimately take longer to review.

Immigration judges from five of the six courts we contacted also stated  that they do not have sufficient time to conduct administrative tasks, such  as case-related legal research or staying updated on changes to  immigration law. Further, one immigration judge stated that in cases  where immigration judges must consider hardship to family members,  such as for a cancellation of removal case, delays in processing the case  may create additional hardships that the immigration judge must consider  in deciding the case. For example, the longer a respondent remains in the  United States, the greater the likelihood that the respondent could create  ties to the United States including through marriage or parenthood that  the immigration judge would consider, as appropriate, before deciding on  any applications for relief. Additionally, as a result of the backlog,  immigration judges from three of the six courts reported that court staff  had feelings of low morale and job-related stress.

section_title: BIA Appeal Receipts Declined at a Faster Rate than Appeal Completions, Resulting in a Decreased Backlog
paragraphs: According to our analysis, from fiscal years 2006 through 2015, the  number of new appeals filed with the BIA decreased by 37 percent while  the number of appeals completed declined by 33 percent. The appeal  backlog—the number of appeals pending at the start of each fiscal year— declined by 40 percent over this same period. Specifically, the number of  new appeals filed with the BIA annually decreased from about 47,000  appeals filed in fiscal year 2006 to about 29,000 filed in fiscal year 2015.  During this period, the number of appeals the BIA completed declined by  33 percent, from about 51,000 in fiscal year 2006 to about 34,000 in fiscal  year 2015. Because new appeal receipts declined at a faster rate than  appeals completed from fiscal year 2006 to fiscal year 2015, the appeal  backlog decreased, from about 42,000 appeals pending at the start of  fiscal year 2006 to about 25,000 at the start of fiscal year 2015. Further,  the number of appeals pending at the beginning of fiscal year 2016  declined to about 20,000 appeals. Cases that were pending at the start of  fiscal year 2015 had a median pending time of 211 days, 19 days shorter  than the median pending time for appeals that had been pending at the  start of fiscal year 2006.

Our analysis showed that over the 10-year period, the largest category of  BIA appeal completions were appeals of removal decisions by  immigration judges, but this category declined from 55 percent of all  appeals completed in fiscal year 2006 to 42 percent of all appeals  completed in fiscal year 2015. The completion of DHS decision appeals  increased from about 5,000 in fiscal year 2006 to about 7,000 in fiscal  year 2015, growing from 10 percent of appeals completed in fiscal year  2006 to 19 percent of appeals completed in fiscal year 2015. Appeals of  other decisions by immigration judges, such as appeals of bond  redeterminations, motions to reopen when the original case was held in  absentia, and interlocutory appeals, remained relatively steady during this  10-year period, accounting for 32 percent of appeals in fiscal year 2006  and 35 percent of appeals in fiscal year 2015.

As previously discussed, single-member or three-member BIA panels  review all appeals. From fiscal year 2006 to fiscal year 2015, single BIA  members annually reviewed 90 percent or more of completed appeals.  Three-member panels consistently reviewed 10 percent or less of  completed appeals throughout the 10-year period. Further, the number of  appeals completed by three-member panels averaged about 3,000  appeals per year from fiscal years 2006 through 2015.

The overall median time it took the BIA to complete any type of appeal  decreased by 29 percent, from 317 days in fiscal year 2006 to 224 days  in fiscal year 2015; however, changes in appeal completion times varied  across appeal types, as shown in figure 7.

section_title: EOIR Could Improve its Workforce Planning, Hiring, and Technology Utilization to Help Address the Case Backlog
subsections: section_title: Better Workforce Planning and Hiring Practices Could Help EOIR Address Staffing Challenges and the Case Backlog
paragraphs: EOIR could help address its staffing challenges, such as not hiring  enough immigration judges to meet its authorized number of judges, and  the case backlog through better workforce planning and hiring practices.  EOIR uses various inputs to estimate staffing needs on an annual basis.  However, these annual estimates do not account for a number of factors  that affect EOIR’s staffing needs, and EOIR has not developed and  implemented a workforce plan to guide its efforts for identifying and  addressing staffing needs. According to EOIR officials, EOIR currently  estimates staffing needs using an informal approach that considers the  needs of specific courts, staff availability, and funding. Specifically, EOIR  calculates its immigration judge staffing needs by dividing its entire  projected caseload for the upcoming fiscal year by the average number of  cases completed per immigration judge in the previous year. EOIR then  calculates its support staff needs using a predetermined ratio of support  staff per immigration judge.

However, this estimate does not account for long-term staffing needs,  reflect EOIR’s performance goals, or account for differences in the  complexity of different types of cases immigration judges are required to  complete. For example, in developing this estimate EOIR does not  calculate staffing needs beyond the next fiscal year or take into account  resources needed to achieve the agency’s case completion goals, which  as discussed later in this report, establish target time frames in which  immigration judges are to complete a specific percentage of certain types  of cases. Furthermore, according to EOIR data, approximately 39 percent  of all immigration judges are currently eligible to retire. However, EOIR  has not systematically accounted for these impending retirements in  calculating its future staffing needs.

EOIR’s most recent Strategic Plan, which covered 2008-2013, stated that  EOIR would create staffing plans for each office that take into account  new skills needed to achieve EOIR’s mission in the future. However,  according to EOIR officials, EOIR did not complete these staffing plans  due to a lack of resources. In 2016, EOIR awarded a contract to a  consulting company for the development of a workforce planning report.  Under this contract, the consultant is to provide, by April 2017, objective  and standardized measures of judicial and court staff workloads and a  method or formula by which EOIR can assess the need for additional  resources. Additionally, according to EOIR officials, as of February 2017,  the Office of the Chief Immigration Judge had initiated a study of the  activities critical to case completion and the time it takes court staff to  complete these activities. However, EOIR was unable to provide  documentation describing the specific goals of this study.

EOIR’s upcoming workforce planning report and the study of case  activities are positive steps that could help strengthen EOIR’s strategic  workforce planning efforts; however, they do not include key elements of  a strategic workforce plan that would help EOIR better address current  and future staffing needs. Strategic workforce planning, also called  human capital planning, focuses on developing long-term strategies for  acquiring, developing, and retaining an organization’s total workforce to  meet the needs of the future, as described in figure 8. We have identified  key principles for effective strategic workforce planning that describe  several important elements of a strategic workforce plan. For example,  the key principles state that agencies should determine the critical skills  and competencies that will be needed to achieve current and future  programmatic results. Our key principles also state that agencies should  develop strategies that are tailored to address gaps in number,  deployment, and alignment of human capital approaches for enabling and  sustaining the contributions of all critical skills and competencies. Further,  the key principles state that agencies should monitor and evaluate the  agency’s progress toward its human capital goals and the contribution  that human capital results have made toward achieving programmatic  results.

EOIR’s initial contract for the workforce planning report required the  development of a method or formula for assessing the need for additional  immigration judges and staff, but it did not require the contractor to  identify critical skills and competencies or tailor identified requirements to  current or future programmatic results. For example, EOIR’s contract  states that the report will identify the volume of judicial and staff resources  necessary to allow EOIR to better fulfill its mission of timely adjudication,  as defined by completions that meet EOIR’s case completion goals.  However, as discussed later in this report, EOIR does not have case  completion goals for non-detained cases, and the majority of EOIR’s  cases—90 percent of the immigration courts’ total caseload in fiscal year  2015—do not fit within a case completion goal. Therefore, EOIR’s new  resource allocation model to be provided under the contract is unlikely to  account for target time frames for the adjudication of the vast majority of  cases. Moreover, although EOIR’s upcoming report is to identify gaps in  the number of staff needed, the contract does not require the contractor  to develop strategies or approaches to address those gaps or analyze the  range of flexibilities in hiring available under current authorities. In  addition, EOIR’s contract does not contain procedures for monitoring or  evaluating progress toward its human capital goal of developing a skilled  and diverse workforce. EOIR officials stated that the contract does not  include these items because EOIR has the option of extending the  contract and requesting additional deliverables.

Following our raising of these issues with EOIR in February 2017, EOIR  officials stated that the agency is beginning to develop a strategic plan for  fiscal years 2018 through 2023 that will address the agency’s human  capital needs. Specifically, according to EOIR officials, the strategic plan  and follow-on plans will collectively include strategies to ensure that short-  and long-term human capital needs are met as well as milestones to  monitor and evaluate the agency’s progress towards meeting these goals.  However, EOIR was unable to provide documentation related to the  content of this strategic plan. In February 2017, EOIR officials also told us  that the agency had recently established an inter-component  management staffing committee that will determine the optimal number  and type of positions needed in each court. Additionally, in February  2017, EOIR provided us a document indicating that the agency has  started to assess in which immigration courts to place 25 judges it may be  allocated during fiscal year 2017. These are positive steps; however, in  the absence of any follow-on workforce planning contracts or  documentation related to EOIR’s strategic plan, the extent to which these  efforts will result in effective strategic workforce planning reflective of key  principles is uncertain. Further, while EOIR’s recent establishment of a  staffing committee and efforts to determine where to place new judges  are good initial steps, developing and implementing a strategic workforce  plan that addresses key principles for effective strategic workforce  planning, such as including a determination of critical skills and  competencies, strategies to address skill and competency gaps, and  monitoring and evaluating progress made, would better position EOIR to  address current and future staffing needs.

Additionally, EOIR does not have efficient practices for hiring new  immigration judges, which has contributed to immigration judges being  staffed below authorized levels. We have previously reported that  agencies should self-assess their human capital policies and procedures,  including hiring, to ensure they are accomplishing agency policy and  programmatic goals. Specifically, we have reported that agencies  should have a recruiting and hiring strategy that is targeted to fill short-  and long-term human capital needs. However, EOIR has not assessed its  hiring process or developed a formal hiring strategy, and its hiring  process has not kept pace with agency-identified immigration judge  staffing needs or authorized staffing levels. EOIR identified a need to  continue to aggressively hire immigration judges, according to its fiscal  year 2016 congressional budget justification, and requested funding for  55 new immigration judge positions to, among other things, address its  caseload and improve the efficiency of the immigration courts. As  mentioned earlier, the number of immigration judges has increased from  212 judges in fiscal year 2006 to 247 in fiscal year 2015. However, as  Congress has allocated funds to increase the authorized number of  judges, the actual number of immigration judges has consistently lagged  behind authorized levels, resulting in staffing shortfalls. For example, in  fiscal year 2016, EOIR was allocated 374 immigration judge positions and  had 289 judges on board at the end of the fiscal year. EOIR officials  attributed these gaps to delays in the hiring process. Furthermore, as  previously discussed, about 39 percent of its immigration judges are  currently eligible for retirement according to EOIR officials.

EOIR hires judges through a multi-step process, involving both EOIR and  DOJ. EOIR officials first issue a vacancy announcement, review and  interview applicants, and identify top candidates. EOIR then forwards the  top candidates to the DOJ Office of the Deputy Attorney General, where a  panel reviews the applicants and selects candidates for appointment by  the Attorney General. The candidate may then receive an initial  employment offer, which the candidate has 21 days to accept or reject.  Upon acceptance, the candidate must undergo a background  investigation by the Federal Bureau of Investigation and vetting through  DOJ’s Office of Attorney Recruitment and Management and Office of  Legal Counsel. Following this step, the Deputy Attorney General and  Attorney General both review and approve the candidate’s application  package a second time. EOIR may then make a formal offer of  employment to the candidate upon receiving the approval of the Attorney  General.

EOIR has not assessed its hiring process or developed a hiring strategy  that is targeted to fill short- and long-term human capital needs.  According to EOIR officials, this is because EOIR has instead focused on  improving aspects of its hiring process. For example, EOIR has entered  into contracts for additional human resource support staff. Under one of  these contracts, EOIR receives assistance with hiring support staff,  which, according to EOIR officials, permits EOIR’s human resources staff  to focus more of their time on immigration judge hiring. Under the other  contract, EOIR is to receive support onboarding new immigration judges.  Additionally, EOIR has hired six additional human resources staff  members and taken steps to improve its hiring process, according to  EOIR officials. Specifically, prior to the contracts increasing EOIR’s  human resources support, the agency’s human resources staff directly  referred all applications to the Assistant Chief Immigration Judges who  initially reviewed applications and selected the interviewees. According to  EOIR officials, this method saved some time in the hiring process  because, for example, most applicants who were of sufficient caliber to be  identified by the Assistant Chief Immigration Judges as candidates for the  position already met the basic qualifications that human resources staff  looked for in their initial review of applications.

However, our analysis of EOIR hiring data found that from 2011 to August  2016, EOIR took an average of more than 2 years—742 days—to hire  new immigration judges. According to EOIR officials, this time period  included a 3-year hiring freeze from January 2011 through February 2014  that prolonged the hiring process. When we only included hires initiated  after the hiring freeze ended in February 2014, we found that EOIR took  an average of 647 days to hire an immigration judge. EOIR officials also  attributed the length of the hiring process to delays in the Federal Bureau  of Investigation background check process, which is largely outside of  EOIR’s control. However, our analysis found that other processes within  EOIR’s control accounted for a greater share of the total hiring time. In  fiscal year 2015, EOIR began tracking the immigration judge hiring  process in greater detail by maintaining a spreadsheet listing key dates in  the process. Prior to 2015, EOIR did not track all key dates in the  process, such as dates associated with the background check process, in  its hiring files. For judges hired since EOIR began tracking these dates  until August 2016, our analysis found that background checks accounted  for an average of about 41 days. However, for the same period our  analysis found that an average of 135 days elapsed between the date  EOIR posted a vacancy announcement and the date EOIR officials began  working to fill the vacancy. During this period of time, EOIR’s Office of  Human Resources reviews and prepares the applications for a  subsequent review by hiring officials in the Office of the Chief Immigration  Judge. According to EOIR officials, EOIR’s vacancy announcements do  not necessarily correspond to vacant positions. Rather, EOIR issues  annual hiring announcements that cover a large number of immigration  courts before they have determined whether those courts have open  vacancies. When EOIR seeks to fill a vacancy or a new judge position,  officials begin by determining where the judge should be located. Then,  EOIR officials use the previously-issued vacancy announcements to  begin identifying candidates for the positions.

Further, our analysis found that since EOIR began tracking key hiring  dates, an average of 74 days elapsed between the time EOIR began  working to fill a vacancy and the time EOIR’s Office of Human Resources  provided a list of qualified applicants to hiring officials. EOIR officials  attributed this length of time to the large number of applicants EOIR  receives for each vacancy announcement. Figure 9 provides an  overview of the hiring process and key milestones for immigration judges  hired during or after fiscal year 2015, when EOIR began comprehensively  tracking dates.

In February 2017, EOIR officials stated that the agency was under a  hiring freeze as a result of the President’s January 23, 2017  memorandum freezing the hiring of federal civilian employees, but that  EOIR planned to request an exception to permit the agency to resume  hiring. The explanatory statement accompanying the Consolidated  Appropriations Act, 2017, states that within the funding provided, EOIR is  to continue hiring new judges funded in fiscal year 2016 and hire at least  10 new immigration judge teams. The President’s fiscal year 2018  budget, released in May 2017, proposed funding to allow EOIR to hire 75  additional immigration judge teams, including judges and supporting  staff. Uncertainty regarding when and for how long EOIR will be able to  hire immigration judges coupled with its staffing gaps makes EOIR’s  ability to hire judges efficiently, when authorized, particularly important.  EOIR’s beginning to track key dates in its hiring process is a positive step  toward gathering information needed to assess and improve its hiring  process. Using this and other information to assess its immigration judge  hiring process to identify opportunities for efficiency; using the  assessment results to develop a hiring strategy that targets short- and  long-term human capital needs; and implementing actions to increase  efficiency could better position EOIR to hire new judges more quickly and  address immigration judge staffing gaps, which could improve EOIR’s  overall operations.

section_title: EOIR Needs to Better Manage Implementation of Its Electronic Filing Capability
paragraphs: EOIR identified a comprehensive electronic filing (e-filing) capability—a  means of transmitting documents and other information to immigration  courts through an electronic medium, rather than on paper—as essential  to meeting its goals in 2001; however, as of February 2017 EOIR has not  implemented such a system. In particular, EOIR issued an executive staff  briefing for an e-filing system in 2001 that stated that only through a fully  electronic case management and filing system would the agency be able  to accomplish its goals. These goals include, among other things,  adjudicating all cases in a timely manner while ensuring due process and  fair treatment for all parties, and promoting internal and external  communication with court stakeholders.

The briefing cited several benefits of an e-filing system, including:  Increasing the ability of the immigration courts to track and schedule  cases;

Reducing the data-entry, filing, and other administrative tasks  associated with processing paper case files;  Improving communication with external court stakeholders, such as  respondents and attorneys, by providing the ability to file court  documents from private home and office computers;

Enabling immigration court staff to have concurrent and immediate  access to the same case file, as well as the ability to share, annotate,  and edit documents through e-mail; and

Allowing immigration court staff and management to conduct analysis  and strategic planning using the e-filing system’s data to ensure that  the agency is meeting its goals.

Since 2001, EOIR has been working to develop a comprehensive e-filing  capability, but has not adhered to several of its stated goals and  timeframes for implementing this capability. EOIR proposed in the 2001  briefing that the agency would, following the implementation of a case  management database in 2002 and successful pilot tests of the e-filing  system, fully implement the system in 2003. However, EOIR did not  achieve these goals. Rather, in 2005 EOIR issued an alternatives and  cost-benefit analysis for a new system known as eWorld, which was to  serve as a platform for developing an e-filing capability, among other  functions. Specifically, according to this analysis, EOIR planned to  implement eWorld in four phases: (1) eInfo to provide a single integrated  case management system to replace the legacy systems; (2) eAccess to  create web-based internal EOIR and public access mechanisms to  access EOIR information, including the incorporation of digital audio  recording capabilities; (3) eFiling to automate document-processing  capabilities; and (4) ePrecedents to assist judges and BIA members with  searching and assembling legal and other information pertaining to cases.  The implementation of these phases, according to this analysis, was  expected to occur over 7 years and EOIR would develop an e-filing  technology that would allow, among other things, all parties to  electronically file documents with the immigration courts during fiscal year  2006.

EOIR implemented other components of eWorld, such as a case  management system and digital audio recording systems in all courts, but  did not implement the e-filing component during fiscal year 2006, as  planned. EOIR continued to emphasize the importance of acquiring a  comprehensive e-filing capability in its most recent strategic plan, which  covered 2008 to 2013, by establishing the implementation of an e-filing  system as one of its four strategic goals to achieve excellence in  management, administration, and customer service.

It is unclear, due to a transition in oversight responsibility and a lack of  historical documentation, why EOIR did not fully carry out these efforts to  implement a comprehensive e-filing system. According to EOIR OIT  officials, decision-making authority for these e-filing efforts resided with  EOIR’s Office of Planning, Analysis, and Technology, which has since  dissolved, and OIT is now responsible for implementing new technology.  According to these officials, the Office of Planning, Analysis, and  Technology—which had the decision-making authority for overseeing  eWorld, including e-filing—may have disposed of records documenting  reasons for not meeting prior goals and timeframes pursuant to  mandatory record retention schedules. As a result, OIT officials were  unable to locate historical documentation on prior efforts, such as  program baselines or cost estimates.

EOIR OIT officials offered several reasons for not meeting past goals and  time frames, including the need to develop several incremental technical  capabilities before implementing a comprehensive e-filing system. EOIR  has implemented several systems foundational to a comprehensive e- filing system since 2001, which have provided additional capabilities, but  have not yet led to the implementation of an e-filing system. EOIR spent  approximately $10 million on its case management system and $9 million  on its digital audio recording system, which were implemented in 2007  and 2010, respectively. The digital audio recording system allows the  immigration courts to digitally record immigration hearings and provide an  electronic transcript of the hearings, which was, according to EOIR OIT  officials, a key capability they needed to develop before implementing a  comprehensive e-filing system. More recently, in 2015 EOIR implemented  the eInfo and eRegistration systems, which cost approximately $3.7  million. The eInfo system, which is different from the system envisioned  under the eInfo phase of the eWorld platform, is a web-based application  that allows registered attorneys and fully accredited representatives to  view their clients’ case information. The information provided by the eInfo  application is similar to that which is currently available by telephone via  the Automated Case Information Hotline. The eRegistration system is an  electronic registry of respondent representation, such as attorneys and  other accredited representatives and allows respondents’ representatives  to electronically file the forms indicating respondent representation with  the immigration courts and the BIA. This application allows for the  electronic filing of two forms indicating respondent representation, but  EOIR immigration court officials explained that the forms still need to be  printed out and placed in the paper case files EOIR maintains.

EOIR OIT officials also explained that prior timeframes and goals were  not met because the technology needed to develop a comprehensive e- filing system was evolving and unavailable at the time. Specifically,  according to EOIR officials, a single commercial-off-the-shelf solution for  an e-filing system was unavailable. However, EOIR reported in 2001 that  it was technologically feasible to develop a comprehensive e-filing system  and, in 2005, identified two potential e-filing systems in its alternatives  analysis for the eWorld platform that would have cost approximately the  same as maintaining the existing paper-based method of filing documents  with the immigration court. As previously described, it is unclear, due to a  lack of available historical documentation, what decisions EOIR made  regarding the e-filing options identified in the 2005 alternatives analysis  for eWorld. Further, EOIR OIT officials stated in 2016 that it remains  unlikely that EOIR will be able to implement a single commercial-off-the- shelf solution without a fair amount of customization before  implementation. Additionally, in terms of available technology, other court  systems, such as the U.S. district courts, courts of appeals, and U.S.  Bankruptcy Courts were able to begin converting to a comprehensive e- filing system in 2001 with the district and bankruptcy courts completing  their conversion in 2006 and the courts of appeals completing their  conversion in 2012.

EOIR OIT officials also cited evolving federal government technological  requirements for data centers, staffing shortages, and a decrease in  funding as affecting EOIR’s capacity to implement e-filing technology prior  to 2016. However, EOIR did not demonstrate how evolving data center  requirements would prohibit EOIR from developing and implementing a  comprehensive e-filing system because these requirements are designed,  in part, to encourage IT efficiencies and were not established until 2010  and 2014 respectively. In regard to EOIR staffing shortages, DOJ and  EOIR had a hiring freeze, but it did not occur until 2011, nearly 10 years  after EOIR first envisioned the development of an e-filing capability.  According to EOIR officials, EOIR’s OIT experienced a significant  decrease in its budget and staffing during key years of the eWorld effort  that required the agency to defer costs into 2007 and beyond.  Specifically, according to EOIR officials, its Office of Planning, Analysis  and Technology’s budget decreased from approximately $41 million in  fiscal year 2010 to approximately $30 million in fiscal year 2013.  However, as previously described, EOIR’s total appropriation increased  every year from fiscal years 2005 through 2016, except for fiscal years  2011 and 2013.

EOIR initiated a comprehensive e-filing effort in 2016, but improved  oversight for this effort could help ensure the successful and timely  implementation of this capability. In April 2016, EOIR initiated a market  research effort for a comprehensive e-filing system—the EOIR Courts  and Appeals Systems (ECAS). According to EOIR OIT officials, EOIR  envisions ECAS to be a web-based system that tracks, displays, and  manages immigration-related records; routes immigration-related  documents for the appropriate approvals and decisions; provides  improved access to select immigration data; allows for electronic filing  and payment; delivers statistics and reports for enhanced court  management; and allows for the intergovernmental secure transfer of  data. Key documents associated with the development of ECAS  underscore the importance EOIR has identified for implementation of an  e-filing system. For example, according to EOIR’s statement of work for  ECAS, EOIR currently relies on a myriad of outdated systems on multiple  platforms. Further, EOIR stated in its fiscal year 2009 budget justification  that upon fully implementing an e-filing system EOIR will be able to  improve the efficiency of its entire adjudication process and that a higher  percentage of its cases will be completed within target timeframes.  Additionally, officials in 4 of the 6 immigration courts and DHS attorneys  in all 6 of the offices we met with reported negative effects due to the  absence of an e-filing system, such as an increased risk of losing  documents; increased resources and staff hours spent manually entering  data into the case management system and filing, storing, and processing  paper files; and delays due to, and costs incurred by, reliance on sending  paper documents through the mail. Conversely, officials in 3 of the 6  immigration courts reported potential challenges in implementing and  using an e-filing system, such as difficulties for unrepresented  respondents in accessing and navigating the system, and the need for  additional court staff to scan existing paper case files and evidence, such  as marriage licenses and birth certificates into the system.

EOIR OIT officials stated that EOIR is in the early phases of the ECAS  project and that it will take several years to fully implement ECAS, with  the first phase of implementation estimated to begin in 2018. Specifically,  in April 2016, EOIR contracted with a vendor to determine the types of  commercial-off-the-shelf technologies that are available for implementing  ECAS. According to EOIR OIT officials, this effort will result in a  “roadmap” for determining the technical solution EOIR should implement  for ECAS. The vendor, according to EOIR officials, submitted the  alternatives analysis and cost estimate for this effort—a key project  milestone—2 months after it was originally due to EOIR. EOIR OIT  officials estimated that the process of identifying the ECAS solution,  gaining approval from EOIR leadership, and requesting proposals from  potential vendors who will implement this solution will be completed by  the end of October 2017 and that the contract for implementing ECAS will  be awarded by January 2018.

Best practices for effective program oversight cite the importance of  oversight in managing the acquisition and development of IT systems.  Standards for Internal Control in the Federal Government also state that  internal control is a process that should provide reasonable assurance  that the objectives of the agency are being achieved.  Further,  according to internal control standards, management is to identify risks  throughout the entity, including the use of new technology in operational  processes, and design control activities so that the entity meets its  objectives and addresses related risks. According to leading governance  practices, to ensure effective program oversight, organizations should,  among other practices, create an entity for overseeing IT projects;  document policies and procedures for program governance and  oversight; monitor program performance and progress toward expected  cost, schedule, and benefits; ensure that corrective actions are identified  and assigned to the appropriate parties at the first sign of cost, schedule,  or performance slippages; and ensure that corrective actions are tracked  until the desired outcomes are achieved.

In alignment with these best practices, EOIR has documented policies  and procedures governing how its primary ECAS oversight body—the  ECAS Executive Committee—will oversee ECAS through the  development of a proposed ECAS solution. Specifically, the ECAS  Executive Committee, comprised of representatives from EOIR’s BIA,  Office of the Chief Immigration Judge, and OIT, among other offices, is  charged with meeting regularly for ECAS progress reviews, ensuring that  the agency’s needs are met, and determining and approving ECAS  solutions. Additionally, to comply with requirements of the Federal  Information Technology Acquisition Reform Act, in 2016 the EOIR  Investment Review Board was established and is responsible for  reviewing proposals and recommendations regarding major investments  over $1 million and EOIR-wide high risk projects for all information  systems, data collections, and resources. According to OIT officials, the  board held its first meeting in March 2017 and was briefed on the ECAS  project. Consistent with best practices for project oversight, EOIR  documented its policies and procedures for how the EOIR Investment  Review Board will oversee all major IT investments within EOIR, including  how it is to monitor program performance, identify and track corrective  actions, and ensure that desired outcomes are achieved.

However, EOIR OIT officials stated that the EOIR Investment Review  Board was never intended to oversee ECAS implementation due to the  detailed nature of this system’s implementation, and EOIR has not yet  designated an oversight entity or documented a plan for overseeing  ECAS during critical stages of its development and implementation.  According to the ECAS Executive Committee charter, the committee will  dissolve after 1 year when the ECAS roadmap for eventually determining  the solution is identified. EOIR OIT officials stated that they are  discussing future oversight for ECAS and may choose to extend the  Committee’s term, but will not decide how the phased implementation of  ECAS, including oversight, will proceed until they identify a vendor  because doing so is not yet necessary. As a result, it is unclear how the  ECAS project will be overseen during the actual deployment of the ECAS  solution. More specifically, it is not clear how the appropriate oversight  body will monitor program performance and progress toward expected  cost, schedule, and benefits; ensure that corrective actions are identified  and assigned to the appropriate parties at the first sign of cost, schedule,  or performance slippages; and ensure that corrective actions are tracked  until the desired outcomes are achieved. Without a designated oversight  entity and a documented plan for oversight for ECAS through its  deployment, EOIR is not well-positioned to monitor progress towards  meeting expected costs and schedule milestones, such as the awarding  of the ECAS contract and the deployment of the solution. Given EOIR’s  longstanding efforts to develop a comprehensive e-filing system and a  delay in meeting a key ECAS milestone, identifying and establishing an  appropriate entity for exercising oversight for the entirety of the ECAS  effort upfront is particularly important. Further, documenting and  implementing a plan that is consistent with best practices for exercising  oversight over ECAS until it is fully implemented would better position the  agency to identify and address any risks and implement ECAS in  accordance with its cost, schedule, and operational expectations.

section_title: EOIR Plans to Expand Its VTC Use, but Would Benefit from Assessing Any Effects on Hearing Outcomes and Collecting Feedback from Respondents
subsections: section_title: EOIR Could Improve Its VTC Program by Collecting More Reliable Data on VTC Hearings and Assessing Any Effects of VTC on Hearing Outcomes
paragraphs: EOIR could enhance its VTC program by collecting more reliable data on  VTC hearings and using the information to assess any effects of VTC use  on hearing outcomes. EOIR is authorized by statute to hold immigration  removal proceedings: (1) in person; (2) in the absence of the respondent,  where agreed to by the parties; (3) through video conference (i.e., VTC),  in which case consent need not be obtained from either party; or (4)  through telephone conference, which requires consent of the respondent  if it is an evidentiary hearing on the merits. According to EOIR officials,  EOIR largely uses VTC for hearings for detained individuals, including  both master calendar and individual merits hearings. According to EOIR  officials, VTC provides several benefits for the agency, including saving  time and funds for judge travel to physical court rooms, particularly in  remote locations; and providing more timely hearings for respondents  who have cases in which the judge would have to travel to hear their  case. Additionally, according to EOIR officials, using VTC can minimize  judges’ lost productivity resulting from a respondent or their  representative not appearing at a court proceeding because the judge  can, by virtue of using VTC to remotely hear the case, transition to  hearing another case in the courtroom or conducting other work.  According to EOIR officials, EOIR is undertaking and considering measures to ensure that VTC technology is available for use in every  courtroom, which may result in increased VTC usage. EOIR officials also  stated that EOIR is considering expanding its VTC program to provide  additional interpretation services over VTC to the immigration courts.

Best practices for VTC hearings established by the Administrative  Conference of the United States (ACUS) provide technical, operational,  and environmental guidance on how agencies may implement or improve  their use of VTC in administrative hearings and related proceedings.  These best practices include, among others, ensuring available IT  support staff and ensuring that the use of VTC is outcome-neutral and  meets the needs of users. In alignment with these best practices, EOIR  has dedicated technical support personnel for trouble-shooting both  routine and urgent VTC technical issues.

However, EOIR has not adopted the best practice of ensuring that its  VTC program is outcome-neutral because it has not evaluated what, if  any, effects VTC has on case outcomes. Further, Standards for Internal  Control in the Federal Government state that agencies must have  relevant, reliable, and timely information relating to internal as well as  external events to manage the agency’s operations. EOIR, though, does  not collect reliable data on (1) the number of hearings it conducts by VTC,  (2) respondent appeals related to the use of VTC in their cases, or (3)  motions filed by respondents requesting in-person instead of VTC  hearings.

According to EOIR’s most recent analysis of caseload data, EOIR  conducted approximately 13 percent of all hearings (105,000 of 809,000)  by VTC in fiscal year 2014. However, the number of VTC hearings EOIR  conducted could be larger because EOIR does not require the collection  of this information. In particular, according to EOIR management officials,  EOIR does not require immigration court staff to indicate the hearing  medium—in-person, telephonic, or VTC—in its case management system  because court personnel have numerous other tasks to accomplish  during hearings. Rather, the data field for the hearing medium is  automatically populated as “in-person” unless court staff manually select  an alternative medium on a drop-down menu within the system. Because  the data for this field are auto-populated and voluntarily entered, EOIR  does not have reliable data on how many VTC hearings it has conducted.

Congressional committees have also identified a need for EOIR to  evaluate its VTC program to determine any relationship between VTC  and hearing outcomes. In particular, the House Committee report  accompanying the Consolidated and Further Continuing Appropriations  Act, 2015 requested that EOIR, in order to assess a possible relationship  between the use of VTC and the impact on managing caseloads and  outcomes, collect information on the number and type of VTC hearings it  conducts, analyze the results to determine if there are any effects of VTC  use in hearings on case outcomes, and submit the results of the analysis  to the Committee at the time of the fiscal year 2016 budget request. In  the House Committee report accompanying the Consolidated  Appropriations Act, 2016 the committee noted that this VTC report had  not yet been submitted, and directed EOIR to submit the report as soon  as possible. As of February 2017, EOIR had not submitted the report,  but in a response to the House Committee, EOIR stated that it would  need to consult with outside experts to develop a methodology and cost  estimate for the study to ensure its validity and that EOIR was receptive  to further discussing the study with the Committee.

According to EOIR officials, EOIR has not collected information on or  evaluated the use of VTC in its hearings for several reasons.

First, officials stated that modifying EOIR’s case management system  and retraining court staff to record the hearing medium for every case  would create considerable costs for EOIR and create an extra task for  already busy court staff. However, as previously described, EOIR’s  case management system includes a non-mandatory field for  collecting data on the hearing medium, including the use of VTC, and  some staff are already entering this data into the non-mandatory field  to change the auto-population from in-person to VTC, as evidenced  by EOIR data showing that over 100,000 hearings were held by VTC  in fiscal year 2014.

Second, officials stated that a study would likely be difficult, costly,  time-consuming, and require EOIR to hire outside experts because it  would need to account for several non-VTC factors, such as criminal  history, that may affect the outcome of an individual’s hearing.

Third, any study on the effects of VTC would have to account for  instances in which some hearings for a respondent were held in- person, while other hearings for the same respondent were held by  VTC throughout the course of the respondent’s case, according to  EOIR officials. However, there are alternative methods for conducting  studies absent the ability to randomly assign individuals to hearings  with VTC and hearings without non-VTC for comparison purposes for  evaluation. In addition, other administrative agencies that use VTC,  including the Department of Veterans Affairs (VA) Board of Veterans’  Appeals (BVA) and the Social Security Administration’s (SSA) Office  of Disability Adjudication and Review (ODAR), have analyzed the  impact of VTC on their hearings.

Fourth, EOIR officials explained that they do not track the number of  appeals related to the use of VTC and motions requesting in-person  hearings because, due to the complexity of appeals and motions, it  would require additional training for legal assistants and would compel  EOIR to begin tracking reasons for other appeals and motions as well.  However, the BIA has screening panels of staff attorneys tasked with  identifying the legal issues in appeals who could incorporate this  additional responsibility into their existing duties with respect to  appeals. Additionally, EOIR does not necessarily have to, by virtue of  collecting data on motions and appeals related to VTC, collect data on  all reasons for motions and appeals.

Several immigration court officials, experts, and stakeholders we  interviewed expressed concern that the use of VTC technology poses  challenges for holding immigration hearings. Specifically, officials from all  six of the immigration courts we visited reported challenges related to  VTC hearings, including difficulties maintaining connectivity, hearing  respondents, exchanging paper documents, conducting accurate foreign  language interpretation, and assessing the demeanor and credibility of  respondents and witnesses. One judge explained that VTC can further  complicate foreign language interpretation using two interpreters to  translate an uncommon language. For instance, VTC may be used for a  first interpreter to translate a respondent’s testimony from an uncommon  language, such as Quiche, to a more common language, such as  Spanish, and for a second interpreter to simultaneously translate the first  interpreter’s Spanish translation into English. Also, one judge explained  that it can be difficult to exchange documents during VTC because the  documents must be sent by a fax machine and it is hard to reference  specific documents over the VTC. Additionally, immigration court officials  from half of the immigration courts we visited stated that they had  changed their assessment of a respondent’s credibility that was initially  made during a VTC hearing after holding a subsequent in-person hearing.  For example, one immigration judge described making the initial  assessment to deny the respondent’s asylum application during a VTC  hearing in which it was difficult to understand the respondent due to the  poor audio quality of the VTC. However, after holding an in-person  hearing with the respondent in which the audio and resulting  interpretation challenges were resolved, the judge clarified the facts of the  case, and as a result, decided to grant the respondent asylum. Another  immigration judge reported being unable to identify a respondent’s  cognitive disability over VTC, but that the disability was clearly evident  when the respondent appeared in person at a subsequent hearing, which  affected the judge’s interpretation of the respondent’s credibility.

Additionally, 9 of the 10 experts and stakeholders we contacted also  expressed concerns with VTC immigration hearings, including the  potential for VTC to affect hearing outcomes. One of the experts and stakeholders we interviewed reported concerns with EOIR increasingly  using VTC to conduct merits and asylum hearings, which generally  address substantive case issues and can result in a decision. According  to this individual, hearings held by VTC instead of in-person can  exacerbate perceived barriers to pro se respondents—individuals without  representation—who already have difficulty understanding the complex  immigration legal system. Another one of the experts and stakeholders  cited a situation in which the respondent’s attorney who was not  physically co-located with the respondent could not confidentially confer  with his client over VTC, and the respondent was ordered removed by the  immigration judge. These experts and stakeholders also cited challenges  during VTC hearings related to exchanging documents between multiple  locations and the quality of foreign language interpretation during VTC  hearings due to poor connectivity and audio quality.

Following our discussion of these issues with EOIR in February 2017,  EOIR’s Office of Planning, Analysis, and Statistics developed a  preliminary proposal document describing possible approaches for  studying VTC effects on case outcomes. However, as of February 2017,  senior EOIR officials told us that EOIR does not have definitive plans to  move forward with a study, leaving the extent to which EOIR will assess  the use of VTC in immigration hearings uncertain. By collecting and  analyzing data to assess the use of VTC in immigration hearings, EOIR  could fulfill the directive in the House Committee report accompanying the  Consolidated Appropriations Act, 2016, be better positioned to manage  and improve its VTC program, as well as assess and address, as  appropriate, concerns expressed by immigration court officials, experts,  and stakeholders. Specifically, through collecting more complete data on  the number and type of hearings it conducts by VTC, EOIR would have  more reliable information for understanding the extent and nature of the  agency’s VTC use, particularly as it plans to expand its VTC program.  Further, by collecting data on appeals related to the use of VTC and the  number of in-person hearing motions filed, EOIR would have additional  information on how respondents may view the use of VTC for hearings.

By using these and other data to assess VTC hearing outcomes and  implementing any corrective actions resulting from this analysis, EOIR  could have further assurance that its use of VTC in immigration hearings  is neutral.

section_title: EOIR Could Further Ensure that Its VTC Program Meets User Needs by Collecting Feedback from Respondents on Their VTC Hearings
paragraphs: EOIR could further ensure that its VTC program meets user needs by  soliciting feedback from respondents regarding their satisfaction and  experiences with VTC hearings. According to EOIR officials responsible  for implementing the VTC program, EOIR primarily gathers informal  feedback on its VTC program through meetings between Assistant Chief  Immigration Judges, immigration judges, and private bar and DHS  attorneys. Additionally, immigration judges and other court stakeholders  can take the initiative to provide feedback on the VTC program to the  court administrator and Assistant Chief Immigration Judge, according to  EOIR officials. However, EOIR does not, according to EOIR officials,  systematically collect feedback on VTC immigration hearings from  respondents.

According to ACUS best practices for VTC use, federal agencies should  solicit feedback and comments about VTC from those who use it  regularly. Specifically, ACUS recommends that agencies maintain open  lines of communication with participants in order to receive feedback  about the use of VTC for the hearing. Post-hearing surveys or other  appropriate methods, according to ACUS best practices, should be used  to collect information about the experience and satisfaction of the  participants with the VTC hearing.

As previously discussed, immigration court officials from all six of the  immigration courts we visited cited challenges related to using VTC for  immigration hearings, which could impact respondents. Specifically,  several of the immigration court officials we interviewed expressed  concerns regarding the visual and audio quality of VTC hearings. For  instance, one immigration judge explained that she discovered  respondents from one DHS detention center frequently could not see all  of the courtroom participants, including the immigration judge, on the VTC  screen in the detention center. A member from the immigration judges’  union explained that this lack of visibility in the courtroom for the  respondents is a significant concern because, according to this member,  it could affect the ability of the respondents to present evidence in support  of their case and respond to evidence presented against them during the  proceedings. Additionally, one immigration judge reported that she does  not like to hold VTC hearings because it is sometimes hard to hear and  fully comprehend what is being said over VTC, which, according to this  judge, can make it difficult to assess the respondent’s demeanor and  credibility. Another immigration judge stated that respondents often  cannot see everyone in the courtroom or know who is speaking during  VTC hearings. Further, an additional immigration judge stated that there  are sometimes poor connections over VTC that make it hard to hear the  respondent. Additionally, officials from 5 of the 6 immigration courts we  visited cited challenges related to VTC equipment malfunctions, including  the need to reschedule hearings, move court-rooms, and a lack of visual  and audio quality for VTC hearings which could lead to delays in  respondents receiving a decision in their case.

Seven of the ten experts and stakeholders that we contacted similarly  reported challenges with the visual and audio quality of VTC hearings that  could affect respondents and immigration judges. Specifically, one of the  experts and stakeholders reported that in some VTC hearings cameras  are not always placed in an effective location. Another one of the experts  and stakeholders stated that sometimes respondents and private bar  attorneys cannot hear or see over VTC what is occurring in the court- room and that foreign language interpretation is also difficult to conduct  over VTC when respondents cannot hear the translation, due to VTC  audio quality issues. Three additional experts and stakeholders also  expressed concerns with immigration judges not being able to see all of  the hearing participants due to VTC technical issues.

EOIR does not, according to EOIR officials, systematically collect  feedback on VTC immigration hearings from respondents for several  reasons:

The immigration court system is adversarial and respondents may not  be able to separate their experiences with VTC from their satisfaction  with the outcomes of their cases;

Respondents can raise concerns with the medium of their hearing by  filing an appeal with the BIA; and

Systematic surveys to collect feedback on its VTC program would  likely require significant resources.

However, EOIR could collect the respondent feedback after a hearing, but  not necessarily after the immigration judge has decided the case.  Specifically, because some cases entail multiple hearings, EOIR could  collect feedback after a VTC hearing but prior to the conclusion of the  case and respondents knowing the outcome. Additionally, other  adjudicatory systems that use VTC have developed methods to collect  feedback from respondents. For example, BVA officials stated that they  previously used a survey card and then an overall veteran satisfaction  survey to gather feedback from veterans regarding their hearing  experience after the judge decided the case. However, BVA officials  explained that due to concerns that the case outcome might bias the  veterans’ response to the survey and that the integrity of the data may be  compromised by waiting to administer the survey, the BVA changed its  method and will in 2017 begin using a new survey that it will conduct  within 2 or 3 weeks after the hearing and prior to the BVA’s decision.  Additionally, instead of solely relying on the appeals process to address  any respondent concerns with VTC hearings, EOIR could utilize existing  feedback processes or potentially lower-cost approaches to collecting  feedback that would not likely require significant resources. For instance,  EOIR could build on its existing complaint process, which allows  respondents to submit complaints regarding immigration judges, private  bar attorneys, and foreign language interpreters through e-mail to  established EOIR e-mail accounts for receiving each type of complaint.

According to ACUS best practices for using VTC for hearings, in addition  to soliciting user feedback agencies should also ensure that conditions  allow participants to see, be seen by, and hear other participants.  Soliciting feedback from respondents on their satisfaction and  experiences with VTC hearings, including the visual and audio quality of  the VTC hearing, could give respondents the opportunity to raise such  technical and other issues and, in turn, help EOIR identify and address  them. Further, soliciting feedback from respondents can help EOIR better  ensure that its VTC program meets all users’ needs, including  respondents whose cases are heard and decided during VTC hearings.

section_title: Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog
subsections: section_title: EOIR Established Some Performance Measures, But Has Not Consistently Met Them and Does Not Have Performance Measures for Most Cases
paragraphs: EOIR previously established performance monitoring activities and  measures to assess aspects of the immigration courts, but has eliminated  several of these performance assessment mechanisms and has not met  its remaining goals consistently since fiscal year 2010. Further, EOIR no  longer has goals for most cases it adjudicates, including some cases it  prioritizes for adjudication. Beginning in 1997, EOIR used the Immigration  Court Evaluation Program to qualitatively measure the courts’ operational  performance. This program employed teams of peer evaluators— immigration judges, court administrators, and legal assistants from other  courts—to evaluate a court’s operations against established objectives,  identify challenges the court faced in achieving EOIR’s goals, and  recommend appropriate corrective measures. In 2002, EOIR also  established 11 quantitative performance goals to help ensure the timely  completion of cases, as shown figure 10. In particular, immigration judges  were expected to complete a specific percentage of cases within a  specified time frame. For example, EOIR established a goal that 80  percent of detained cases—cases in which the respondent is detained  throughout the case—were to be completed within 60 days. DOJ uses  performance results related to two of these goals—case completion time  for detained cases and Institutional Hearing Program cases—in its Annual  Performance Report to assess efforts in achieving its strategic objective  of adjudicating all immigration cases promptly and impartially in  accordance with due process.

However, EOIR officials stated that in fiscal year 2008 EOIR moved from  conducting qualitative on-site evaluations through the Immigration Court  Evaluation Program to using quantitative performance measures. Further,  in fiscal year 2010, EOIR eliminated and condensed several of these  goals. Specifically, EOIR eliminated four quantitative case completion  goals, including goals for most non-detained cases, and condensed four  other goals into two goals, leaving five total performance goals for case  completion times, as shown in figure 10.

Since fiscal year 2010, EOIR reported that it has not consistently met its  five remaining goals. Specifically, according to internal quarterly  performance reports, EOIR has only consistently met, or come close to  meeting, its goal to complete 85 percent of bond redetermination hearings  within 21 days, as shown in table 2.

Further, as a result of changes to its performance activities and  measures, EOIR does not have performance measures or goals for most  of the cases it adjudicates. For example, EOIR does not have  performance goals for cases in which the respondent is not detained  (non-detained cases). In 2012, the DOJ Office of Inspector General  recommended that EOIR develop immigration court case completion  goals for non-detained cases. EOIR partially concurred with this  recommendation and began to track non-detained case completion times,  but did not implement case completion goals for non-detained cases.  EOIR officials explained that the agency did not ultimately implement  these goals because case completion goals are a statement of agency  priorities, and EOIR officials stated that counting every case as a priority  does not allow EOIR to effectively allocate its resources. Non-detained  cases comprised 83 percent of immigration courts’ total caseload from  fiscal year 2010 through fiscal year 2015. Further, non-detained cases  grew at an average annual rate of 10 percent over that time period and in  fiscal year 2015 represented 90 percent of EOIR’s total caseload.

Additionally, EOIR has identified certain types of cases as priorities for  adjudication and issued guidance to courts on how to prioritize these  cases through their scheduling of hearings, but EOIR has not established  goals to ensure the timely completion for all of these cases. From  September 2014 to January 2017, EOIR prioritized the cases of detained  recent border crossers, unaccompanied children, and families held in  detention or released on alternatives to detention. EOIR had case  completion goals for detained respondents, but not for the other cases it  considered a priority—unaccompanied children or families released on  alternatives to detention.

Our analysis showed that from September 2014 when the guidance was  issued to September 2015, prioritized cases accounted for 28 percent of  the NTAs EOIR received as shown in table 3. Prioritized cases without  case completion goals, families released on alternatives to detention and  unaccompanied children, accounted for 23 percent of NTAs EOIR  received during this period.

In January 2017, EOIR changed the cases it prioritized to (1) all detained  individuals; (2) unaccompanied children in the care and custody of the  Department of Health and Human Services, Office of Refugee  Resettlement without a sponsor identified; and (3) individuals released  from detention pursuant to a Rodriguez bond hearing. EOIR has  maintained its case completion goals for detained respondents and  incorporated cases involving unaccompanied children without an  identified sponsor into the category of detained cases. However, as of  February 2017, EOIR has not developed a case completion goal for its  case priority of individuals who have been released from detention  pursuant to a Rodriguez bond hearing and none of its current five case  completion goals encapsulate this priority because this category of  respondents are not detained. Further, EOIR officials stated that the  agency does not plan to develop a goal for completing these cases.

EOIR officials provided several reasons for changes to its performance  assessment and measures. According to EOIR officials, EOIR changed  the Immigration Court Evaluation Program from a qualitative performance  assessment to a solely quantitative assessment as a result of a DOJ  hiring freeze in 2011, which reduced the number of available staff for on- site evaluations. EOIR officials stated that in January 2017, the agency  hired a staff member to start a new program, the Organizational Results  Unit, intended as a successor to the Immigration Court Evaluation  Program. According to these officials, EOIR plans to have the new  program in place before the end of fiscal year 2017. EOIR officials also  told us that EOIR eliminated and combined the quantitative performance  measures because the remaining five measures represent the agency’s  highest priorities. Further, these officials stated that tracking case  completion goals for non-priority cases, such as non-detained cases,  would limit the agency’s ability to focus on meeting case completion goals  for prioritized cases. However, EOIR does not have case completion  goals for some of the cases it considers priorities, such as individuals who  have been released from detention pursuant to a Rodriguez bond  hearing. Additionally 6 of 12 immigration judges we spoke with told us  that achieving case completion goals was not as important to them as  ensuring the due process rights of respondents. However, EOIR’s primary  mission is to adjudicate immigration cases in a careful and timely manner,  and, according to statements by EOIR’s Director, EOIR works to hear  priority cases as quickly as possible while protecting due process.

Standards for Internal Control in the Federal Government state that  management should monitor and assess the quality of performance over  time. Additionally, these standards state that information is needed  throughout an agency to achieve all its objectives. Moreover, we  previously identified practices for enhancing agency use of performance  information, including communicating performance against established  targets. Without establishing performance goals and targets that more  comprehensively account for case types, including the majority of its  caseload and 73 percent of completed cases in fiscal year 2015, EOIR  cannot fully evaluate whether the immigration courts are achieving  EOIR’s mission which includes the timely adjudication of all cases—both  detained and non-detained. Comprehensive case completion goals,  including for example new case completion goals for non-detained  respondents, and cases it considers a priority, such as individuals who  have been released from detention pursuant to a Rodriguez bond  hearing, would help EOIR more effectively monitor its performance.  Further, such goals would not preclude EOIR from reflecting agency  priorities by assigning priority cases a shorter case completion goal, a  larger percentage goal, or both.

section_title: Assessing Case Continuance Data Could Help EOIR Ensure Efficient Management Practices
paragraphs: EOIR collects information on the extent and reasons why immigration  judges issue continuances—temporary adjournments of case  proceedings until a different day or time—but does not systematically  assess these data to identify and address potential operational  challenges affecting the immigration courts or areas where immigration  judges could benefit from additional guidance or training. Immigration  judges may adjourn a case for a variety of reasons, either on their own  volition or for good cause shown by the respondent or DHS. For  example, an immigration judge has discretionary authority to grant a  motion for continuance to allow respondents to obtain legal  representation or DHS to complete required background investigations  and security checks. EOIR tracks the extent to which immigration  judges issue continuances and the reason for each continuance within its  case management system. EOIR categorizes reasons for case  continuances into approximately 70 different categories, including:

Respondent-related continuances, such as illness of a respondent or  their witness or attorney;

DHS-related continuances, such as the need for more time to  complete a background investigation or security check;  Immigration judge-related continuances, such as unplanned leave or  insufficient time to complete a hearing; and

Operational continuances, such as a lack of a foreign language  interpreter, or a VTC malfunction.

In 2013, EOIR issued guidance to assist immigration judges with fair and  efficient practices related to the issuance of continuances. This  guidance states that while many requests for continuances are for  legitimate or unforeseen reasons, multiple continuances result in delay in  the individual case, and when viewed across the entire immigration court  system, exacerbate already crowded dockets. According to this guidance,  multiple hearings in a case resulting from the use of continuances,  especially at the individual calendar hearing, require administrative time  and resources for the preparation of notices to the parties, often involve  contract interpreters, and use docket time that could otherwise have been  used for case resolution.

Our analysis of about 3.7 million continuance records from fiscal years  2006 through 2015 showed that the use of continuances has grown over  time and that, on average, cases that experience more continuances take  longer to complete. Specifically, our analysis of EOIR’s continuance data  found that the use of all types of continuances increased by 23 percent  from fiscal year 2006 to fiscal year 2015. According to our analysis,  immigration judge-related continuances increased by 54 percent from  about 47,000 continuances issued in fiscal year 2006 to approximately  72,000 continuances issued in fiscal year 2015. Operational continuances increased by 33 percent from about 35,000 continuances issued in fiscal  year 2006 to about 47,000 continuances issued in fiscal year 2015.  Respondent-related continuances increased by 18 percent from about  214,000 continuances issued in fiscal year 2006 to about 252,000  continuances issued in fiscal year 2015. DHS-related continuances  declined by 2 percent from about 25,000 continuances issued in fiscal  year 2006 to about 24,000 continuances issued in fiscal year 2015.

We also found that the percentage of completed cases which had multiple  continuances increased from fiscal year 2006 to fiscal year 2015 and that,  on average, cases with multiples continuances took longer to complete  than cases with no or fewer continuances. Specifically, 9 percent of cases  completed in fiscal year 2006 experienced four or more continuances  compared to 20 percent of cases completed in fiscal year 2015.  Additionally, cases that were completed in fiscal year 2015 and had no  continuances took an average of 175 days to complete. In contrast, cases  with four or more continuances took an average of 929 days to complete  in fiscal year 2015. EOIR officials attributed this trend to successful  legal challenges brought by respondents where circuit courts have  remanded to the BIA cases in which the BIA upheld immigration judge  decisions to deny a request or motion for a continuance.

DHS attorneys from four out of six offices we visited told us that granting  multiple continuances in cases resulted in inefficiencies and wasted  resources such as DHS attorneys having to continually prepare for  hearings that continued multiple times. Additionally, some of these  attorneys stated that the increased use of continuances across the  immigration courts contributed to—or were the primary cause of—the  courts’ case backlog. Further, DHS attorneys from two offices stated that  they had expressed their concerns about the increased use of  continuances—some of which they characterized as excessive or  unwarranted—to EOIR management but had not seen a shift in the extent  to which judges grant continuances. For example, one of these DHS  attorneys cited cases involving respondents convicted of serious crimes,  such as gang rape, who have received multiple continuances in their  cases. As a result, according to this DHS attorney, the cases have remained open and pending in immigration court for several years and in  some of these cases the respondents committed additional crimes while  their cases were pending. EOIR’s 2013 guidance directs immigration  judges to document the circumstances for providing two types of  continuances, but EOIR does not track the use of these or any other type  of continuance to identify potential management challenges. EOIR  officials stated that it does not track the frequency or reasons for  continuances because immigration judges have broad discretion over  whether to grant continuances. Further, EOIR officials also stated that  systematically analyzing the use continuances is not necessary because  they have other mechanisms, such as tracking complaints from parties  involved in a case, that would alert EOIR to the same issues that  analyzing continuances would.

Standards for Internal Control in the Federal Government state that  accurate and timely recording of events provide relevance and value to  management when controlling operations and making decisions.  Further, we have previously found that best practices in managing for  results include using performance information to identify effective  approaches, as well as identify problems and take corrective action.  Systematically analyzing the use of continuances, particularly operational  continuances, could provide EOIR officials with valuable information  about potential challenges the immigration courts may be experiencing or  areas that may merit additional guidance and training for immigration  judges. EOIR officials can continue to use complaints from parties to track  issues on a case-by-case basis, but also analyzing the use of  continuances on a systematic basis would give EOIR greater insight into  more widespread issues. For example, EOIR could analyze the extent to  which, if any, operational issues with translators, VTC malfunctions, or  other issues that could be affecting the immigration courts. In addition,  EOIR could use this information to determine whether additional guidance  or training in the use of continuance codes would be helpful for judges.  For example, our analysis of continuance records showed that judges  continued 2,882 hearings in fiscal year 2015 due to the federal  government shutdown that occurred and ended in October of fiscal year  2014. Further, using this information to potentially address operational challenges could help EOIR meet its goals for completing cases in a  timely manner, which it did not consistently do from fiscal year 2010  through fiscal year 2015 as previously discussed.

section_title: Timely and Accurate Recording of NTAs Could Help EOIR Better Track and Report Case Completion Times
paragraphs: EOIR could improve the reliability of its case management data and  reports on case completion times by ensuring that court staff accurately  record NTAs in a timely manner. As discussed earlier in this report, EOIR  has used case completion times to assess its performance since at least  2002 and reports this information publically in DOJ’s Annual Performance  Report. EOIR does not have guidance or data integrity efforts to ensure  the timely and accurate recording of NTAs in its case management  system. Federal regulations and EOIR’s docketing manual state that  cases before the immigration court begin on the date that DHS files an  NTA with the court, known as the receipt date. EOIR maintains a policy  that court staff enter NTAs received from DHS into its case management  system upon receipt. According to guidance EOIR issued in 1987, the  timely and accurate entry of NTAs into the case management system is  vital to ensuring the accuracy and completeness of the system, as well as  the accuracy of data in statistical reports. The guidance requires court  staff to update the court’s caseload in its case management system on a  monthly basis and verify the accuracy of this information on a quarterly  basis. However, EOIR officials told us that this guidance is outdated  because it is based on a case management system EOIR stopped using  in 2007. Further, EOIR has not issued new guidance to ensure the timely  and accurate recording of NTAs into its current case management  system.

We found that at least 16 percent of cases entered into EOIR’s case  management system from fiscal year 2006 through 2015 had NTA receipt  dates that may be unreliable. Specifically, our analysis showed that 16  percent of cases had NTA receipt dates that occurred after the input  date—the date automatically generated when court staff enter the  respondent’s NTA into the case management system. An input date  cannot occur prior to the receipt date because the receipt date reflects the  date the NTA was first received by the court. Both EOIR officials and  DHS attorneys identified the timely recording of NTAs as a challenge for  immigration courts. EOIR officials told us that the agency has used  temporary duty assignments and added resources to assist courts that  are the least timely in recording NTAs. Nonetheless, EOIR officials told us  that they recognize that court personnel often enter NTAs for priority  cases before non-priority cases due to limited resources. For example,  three of the five EOIR court administrators we interviewed stated that they  do not always have sufficient personnel to enter NTAs in a timely manner  or that they have a backlog of NTAs waiting to be recorded at their courts.  Additionally, EOIR officials reported that the receipt date is more  susceptible to human error since it is manually inputted rather than  automatically generated by the case management system.

Standards for Internal Control in the Federal Government require that  management establish internal controls and develop policies and  procedures to ensure their implementation. These standards also call  for agencies to communicate quality information with external parties,  such as other government entities, to make informed decisions and  evaluate the entity’s performance in achieving key objectives. EOIR  officials stated that its guidance on docketing priority cases, as well as the  agency’s case completion goals, provide timeframes for the entering of  NTAs. Specifically, EOIR officials stated that its guidance that detained  cases must be scheduled on the earliest possible date and its expedited  timeframe goals for completing detained cases, credible fear reviews, and  asylum cases ensures that staff are entering NTAs in a timely manner.  However, this guidance does not instruct staff to ensure the reliability of  NTA data and further, as previously described, cases with case  completion goals account for a minority of cases EOIR adjudicates. Also  as discussed earlier in this report, EOIR has not met its goals for these  three case types since fiscal year 2012, suggesting that the existence of  these goals alone does not ensure the timely completion, including NTA  entry, for the minority of cases that do have completion goals. Updating  policies and procedures to remind staff about the importance of, and  guide them in, timely and accurate recording of all NTAs would provide  EOIR greater assurance that its case management data are accurate— including the size of its case backlog. Further, improving the reliability of  these data would allow EOIR to provide more accurate information in  DOJ’s Annual Performance Report, which would give external  stakeholders, including Congress and the public, a more accurate  understanding of case completion times.

section_title: Experts and Stakeholders Have Proposed Restructuring EOIR’s Immigration Court System
subsections: section_title: Experts and Stakeholders Have Proposed Establishing a Court System Independent of the Executive Branch, an Administrative Agency, or a Hybrid System
paragraphs: Some immigration court experts and stakeholders have recommended  restructuring EOIR’s administrative review and appeals functions within  the immigration court system—immigration courts and BIA—and OCAHO,  with the goal of seeking to improve the effectiveness and efficiency of the  system or, among other things, to increase the perceived independence  of the system and professionalism and credibility of the workforce. To  enhance these areas, these experts and stakeholders, such as  individuals affiliated with professional legal organizations and former  EOIR immigration judges, have proposed changing the immigration court  system’s structure, location among the three branches of government,  and aspects of its operations. In order to identify restructuring scenarios  that experts and stakeholders have proposed, we reviewed publications  and interviewed individuals affiliated with eight entities, as well as two  former immigration judges selected based on their expertise in  immigration court issues. See appendix I for more information on the ten  expert and stakeholder entities and individuals we selected. We found  that these experts and stakeholders generally supported one of the  following scenarios for restructuring the immigration court system, all of  which would require a statutory change to implement: a court system independent (i.e., outside) of the executive branch to  replace EOIR’s immigration court system (immigration courts and the  BIA), including both trial and appellate tribunals; a new, independent administrative agency within the executive branch  to carry out EOIR’s quasi-judicial functions with both trial-level  immigration judges and an appellate level review board; or a hybrid approach, placing trial-level immigration judges in an  independent administrative agency within the executive branch, and  an appellate-level tribunal outside of the executive branch.

Six of the 10 experts and stakeholders we interviewed also discussed a  range of other court systems and administrative agencies within the U.S. government that could serve as examples of these potential court  structures, including, but not limited to, the:

U.S. Bankruptcy Courts, which are units of the U.S. District Courts  made up of bankruptcy judges who are judicial officers appointed to  hear bankruptcy cases;

Social Security Administration’s (SSA) Office of Disability Adjudication  and Review (ODAR), which is the component responsible for  overseeing SSA’s administrative hearings and appeals process;  and

Board of Veterans’ Appeals (BVA) and Court of Appeals for Veterans  Claims (CAVC), a hybrid system consisting of an administrative  agency within the Department of Veterans Affairs (VA) and an  appellate court outside of the executive branch.

There are various characteristics related to the structure, location among  the three branches of government, and operations of the current court  systems, as described in table 6, that are not inherent to the proposed  structural scenarios. However, these characteristics are relevant to  consider in deciding whether and how to restructure the immigration  courts and the BIA. For instance, the role of the courts and the types of  cases they adjudicate, their caseloads, and the processes for appointing  judges are characteristics that vary widely across court systems.  Specifically, in regard to appointment processes, bankruptcy court judges  are appointed by the U.S. Court of Appeals for the circuit in which the  district is located after considering recommendations of the circuit court’s  judicial council. In contrast, the Office of Personnel Management  manages and oversees the hiring process for SSA judges, known as  administrative law judges, and all other administrative law judges federal  government-wide. SSA hires its judges from the Office of Personnel  Management’s register, which is comprised of candidates that have  satisfied certain qualification requirements and been rated based on an  Office of Personnel Management-administered administrative law judge  examination. Meanwhile, the President appoints CAVC judges and the  BVA Chairman with the advice and consent of the Senate and the  Secretary of Veterans Affairs appoints the other members of the BVA,  known as veterans law judges, from a list of recommendations of the  Chairman, which are approved by the President. For additional  information on the characteristics of these court systems, see appendix  IV.

The potential effects of restructuring on immigration court system costs  could also be examined when considering restructuring scenarios. Under  the current system, EOIR’s largest expense is its personnel and  compensation, which constituted approximately 53 percent of its fiscal  year 2015 expenditures and averaged approximately $181 million  annually from fiscal years 2012 through 2015. Accordingly, this cost  category could be significantly affected by changes in personnel and  compensation costs resulting from a restructuring of the immigration court  system. Therefore, it is important to consider how, if at all, immigration  judge compensation may potentially change under a restructuring,  particularly if the job series and classification of immigration judges were  adjusted under a new structure. For instance, according to data on judge  pay rates, in 2014 bankruptcy judges’ compensation—approximately  $183,000—was higher than the compensation of the most senior  immigration judges at approximately $167,000.

The costs associated with how a restructuring is specifically carried out  are another relevant factor to consider. For instance, a restructuring of the  immigration court system would likely result in different facility and IT  costs depending on whether the restructured system preserved existing  facilities or occupied new ones, and whether it adopted new IT systems or  used existing ones. One of the experts and stakeholders we interviewed  also stated that it would be important to focus on the immigration courts’  support functions and staff under a restructuring since the immigration  courts support staff would be critical in managing the transition to a newly  restructured court with potentially new facilities and administrative  practices.

The placement of OCAHO within a restructured immigration court system  could also be examined when considering restructuring scenarios. In  seeking experts’ and stakeholders’ perspectives, we solicited their views  on placement options for OCAHO. The experts and stakeholders we  interviewed recommended a range of potential locations for OCAHO, with  some suggesting the office be independent of, and others suggesting that  it be included within, a restructured system. For example, experts and  stakeholders that suggested OCAHO be independent of a restructured  immigration court system recommended that it be instead placed within  DOJ’s Civil Rights Division, the Department of Labor, or DHS. Two of the  experts and stakeholders explained that since OCAHO provides a very  different function—adjudication of immigration-related employment and  document fraud cases—from that of the immigration courts and the BIA  that it does not need to be placed within the same organization as the  courts and the BIA. Similarly, another one of the experts and stakeholders  stated that OCAHO’s mission is more compatible with that of DHS and  the Department of Labor. In contrast, one of the experts and stakeholders  recommended that OCAHO be merged with a restructured immigration  court system and that OCAHO’s administrative law judges become  immigration judges who, in addition to hearing immigration-related  employment and document fraud cases, also adjudicate removal and  other proceedings that presently fall within the jurisdiction of immigration  judges. This individual offered several advantages to merging OCAHO  functions with the immigration court system. For example, according to  this individual, under this proposal EOIR could potentially reduce travel- related costs for OCAHO judges who as immigration court judges would  no longer be centrally located and would instead be assigned to  immigration courts nationwide.

section_title: Restructuring Benefits Cited Include Enhancing Perceptions of Independence, but Concerns Exist Regarding Whether Restructuring Could Resolve Existing Management Challenges
paragraphs: Six of the ten experts and stakeholders we interviewed, including  individuals affiliated with professional legal organizations, academia, and  the private immigration bar, supported restructuring the immigration court  system into a court independent of the executive branch. Two of the  experts and stakeholders we contacted supported a new independent  administrative agency within the executive branch. One of the experts  and stakeholders supported the hybrid scenario, placing trial-level  immigration judges in an independent, administrative agency within the  executive branch, and an appellate-level tribunal outside of the executive  branch. As summarized in table 7 and further described below, experts  and stakeholders offered several reasons for each of the proposed  scenarios, such as potentially increasing the perceived independence of  the immigration court system; as well as provided reasons against  restructuring options, such as potentially complicating the appointment of  immigration judges. We are not taking a position on any of these  restructuring proposals, or on any of the reasons offered for or against  them. We present the information we obtained from the experts and  stakeholders to inform policymakers about proposals that have been put  forth regarding restructuring the immigration court system.

The experts and stakeholders we interviewed cited several reasons for  the proposed restructuring scenarios, as described in table 7 and below.

Independence: Six of the ten experts and stakeholders we contacted  stated that establishing a court system independent (i.e., outside) of  the executive branch could increase the perceived independence of  the system. For example, one of the experts and stakeholders  explained that the public’s perception of the immigration court  system’s independence might improve with a restructuring that  removes the quasi-judicial functions of the immigration courts and the  BIA from DOJ because DOJ is also responsible for representing the  government in appeals to the U.S. Circuit Courts of Appeals by  individuals seeking review of final orders of removal. This same expert  and stakeholder noted that removing the immigration court system  from the executive branch may help to alleviate this perception that  the immigration courts are not independent tribunals in which the  respondents and DHS attorneys are equal parties before the court.  Another one of the experts and stakeholders explained that under the  existing immigration court system, respondents may perceive, due to  the number of immigration judges who are former DHS attorneys and  the co-location of some immigration courts with ICE’s OPLA offices,  that immigration judges and DHS attorneys are working together. Two  of the ten experts and stakeholders we interviewed also proposed that  an immigration court system independent of the executive branch  would be less susceptible to political pressures within the executive  branch. Experts and stakeholders cited similar independence-related  reasons for supporting the administrative agency and hybrid  scenarios.

Judicial autonomy: Four of the ten experts and stakeholders we  interviewed stated that a court system independent of the executive  branch might give immigration judges and BIA members more judicial  autonomy over their courtrooms and dockets. For example, one of the  experts and stakeholders stated that immigration judges in an  independent court system would be able to file complaints against  private bar attorneys directly with the state bar authority instead of  filing the complaint with DOJ first, as presently required for  immigration judges acting in their official capacity. EOIR officials  explained that while immigration judges cannot directly file a  complaint with the state bar authority, EOIR’s Disciplinary Counsel,  which is charged with investigating these complaints, can file a  complaint with the state bar on behalf of the immigration judge.

Workforce professionalism or credibility: Four of the ten experts  and stakeholders we contacted stated reasons why a court system  independent of the executive branch might also improve the  professionalism or credibility of the immigration court system’s  workforce. For example, one of the experts and stakeholders  explained that placing judges in an independent immigration court  system could elevate their stature in the eyes of stakeholders, and by  extension, enhance the perceived credibility of their decisions.  Additionally, one of the experts and stakeholders explained that if the  judge career path was improved under a restructuring such that  immigration judges were able to advance to more prestigious  judgeships, this could assist in attracting candidates to the  immigration bench. Regarding the hybrid scenario, one of the experts  and stakeholders noted that this proposal may attract a more diverse  and balanced pool of candidates for immigration judge positions.

Organizational capacity or accountability: Two of the ten experts  and stakeholders who supported a court system independent of the  executive branch cited enhanced organizational capacity or  accountability as a reason for adopting this scenario. One of the  experts and stakeholders explained that this type of restructuring may  allow the immigration court system to improve its organizational  capacity by changing the way it staffs its managerial and supervisory  positions. For example, this expert and stakeholder explained that  instead of placing immigration judges in managerial positions, EOIR  could, as an independent court system, more easily attract and fill  managerial positions with individuals who have experience in court  management and public administration. Similarly, this same expert  and stakeholder also noted that if the restructured immigration court  system was placed within the purview of the Administrative Office of  the U.S. Courts, which provides a wide range of support services to  the federal judiciary (including administrative, technological and legal  services), it could use its expertise in court management to assist with  managing the system.

In terms of enhancing organizational accountability, this expert and  stakeholder explained that an independent court system could also  increase the transparency of the performance evaluation system for  immigration judges by incorporating feedback from court stakeholders,  such as DHS and private bar attorneys, on the judges’ performance.  Similarly, EOIR might be better-positioned under an independent court  system, according to this expert and stakeholder, to increase the  transparency of the process for making complaints against immigration  judges. Specifically, the complaint process for other federal judges,  according to this individual, is more transparent and the judges are given  an opportunity to address the complaint and appeal any decisions that  resulted from the complaint. In addition, according to this same expert  and stakeholder, a court outside of the executive branch would allow for  more flexibility to address physical space and hiring issues without the  involvement of another executive agency or department. One of the  experts and stakeholders who supported the independent administrative  agency scenario and explained that this proposal might increase EOIR’s  administrative efficiency by allowing for the appointment of one full-time,  high-level person responsible for administering the immigration courts, as  well as attracting highly-qualified managerial talent.

The experts and stakeholders we interviewed also cited several reasons  against the proposed restructuring scenarios, as described in table 7 and  below.

Resolution of existing management challenges or case backlog:  Two of the ten experts and stakeholders we contacted stated that a  court system independent of the executive branch may not address  the immigration courts’ management challenges, such as the case  backlog. For example, one of the experts and stakeholders stated that  the immigration court system would likely have a large caseload  regardless of how it is structured. Another one of the experts and  stakeholders explained that issues related to how EOIR supports  respondents without legal representation and—in this individual’s  opinion—the poor quality of foreign language interpretation in some  cases could persist even with a restructuring of the system. One of  the experts and stakeholders stated that restructuring the immigration  court system into an independent administrative agency would not  address EOIR’s systemic issues, such as its case backlog.

Appointment of immigration judges: Two of the ten experts and  stakeholders we interviewed noted that requiring the presidential  nomination and senate confirmation of immigration judges under an  independent court system could further complicate and delay the  hiring of new judges by making the appointment of additional judges  more dependent on external parties.

Administrative challenges: Two of the ten experts and stakeholders  we interviewed stated that it may be difficult to establish and  administer a court system independent of the executive branch.  Specifically, these experts and stakeholders expressed concern that  the Administrative Office of the U.S. Courts may be reluctant to  assume the vast responsibility of administering a newly created court  system. Regarding administrative challenges associated with the  establishment of an independent administrative agency, one of the  experts and stakeholders explained that this scenario might be overly  complicated to implement since EOIR would need to develop its own  administrative functions outside of DOJ. Further, this same expert and  stakeholder stated that this scenario could also result in, to a large  extent, a duplication of the existing immigration court system.  According to one of the experts and stakeholders, creating a hybrid  court system may further complicate the administration of the  immigration court system and potentially result in difficulties for  respondents.

Procurement of resources: Five of the ten experts and stakeholders  we interviewed expressed the concern that a restructured immigration  court system, regardless of the scenario, would not be able to procure  sufficient resources outside of DOJ. For example, one of the experts  and stakeholders noted that a restructured independent court or  administrative agency might have less leverage outside of DOJ to  compete for resources. One of the experts and stakeholders noted  that the existing immigration court system must compete with other  DOJ funding priorities for resources.

Trial level disconnection from the appellate level: One of the  experts and stakeholders stated that if the hybrid scenario were to be  adopted, the trial level may become more disconnected from the  appellate level, due to the placement of the immigration courts within  the executive branch and the appellate body outside of the executive  branch.

Officials from existing court and adjudicatory systems that, according to  experts and stakeholders, could serve as potential examples for  restructuring also cited reasons for and against adopting characteristics  from each of their respective systems. For instance, according to the  Secretary of the Judicial Conference of the United State—which makes  administrative policies for the U.S. Bankruptcy Courts, among other  duties—the bankruptcy courts may not be a useful model for restructuring  the immigration court system due to, among other factors, the complexity  of their jurisdiction. Under law, the federal district court has original and  exclusive jurisdiction of all bankruptcy cases, but each district court may  refer bankruptcy cases and proceedings to the bankruptcy judges of its  district and retains the authority to withdraw referral to the bankruptcy  court and handle a bankruptcy case itself. In terms of establishing an  independent immigration court system outside of the executive branch,  the Judicial Conference of the United States also cautioned that placing  immigration courts within the judiciary would strain the judiciary’s financial  and administrative resources and ability to focus on existing criminal and  civil adjudication.

An official from SSA’s ODAR—the component responsible for overseeing  the administrative hearings and appeals process—stated that they have  experienced success using, among other practices, regional and national  case assistance centers that assist local hearing offices with case  preparation and decision writing. However, these officials also cited  challenges with increasingly lengthy case files due to significant increases  in the submission of medical evidence, staffing shortages, and the timely  selection of administrative law judges through the Office of Personnel  Management’s appointment process. Regarding the third type of court  system—a hybrid of an independent court system and an administrative  agency—CAVC officials explained that it is beneficial for the CAVC to  have its budget reviewed by appropriators within the veterans community  of interest instead of as part of the judiciary appropriations process.  However, CAVC officials also cited challenges with its independent  structure in that it is not directly supported by the Administrative Office of  the U.S. Courts—the judiciary’s organization for assisting courts with  administrative and managerial functions. As a result, the CAVC is  responsible for many of its management functions, such as information  technology support, procuring facility space, and hiring personnel, which  can be challenging, according to these same officials. Additionally, one of  the experts and stakeholders familiar with the BVA explained that its dual  appellate structure with the CAVC reviewing BVA decisions and, in  instances in which CAVC decisions are appealed, the U.S. Court of  Appeals for the Federal Circuit reviewing CAVC decisions, can delay the  decision-making process, among other challenges. This form of judicial  review creates, according to this individual, redundancies in the review of  BVA decisions. However, BVA officials explained that much of the delay  may be attributed to the multiple layers of review within the VA before the  appeal is heard at the BVA level. For instance, the VA must issue a new  decision each time a veteran provides additional evidence for the appeal,  which delays the VA’s certification of the appeal for a BVA hearing and  can result in lengthy wait times for veterans, according to BVA officials.

section_title: Conclusions
paragraphs: The doubling of the immigration courts’ backlog over the last decade to  more than 437,000 cases at the beginning of fiscal year 2015 poses  challenges to EOIR in meeting its mission to adjudicate immigration  cases by fairly, expeditiously, and uniformly administering and interpreting  federal immigration laws. The effects of the case backlog are significant  and wide-ranging, from some respondents waiting years to have their  cases heard to immigration judges being able to spend less time  considering cases. Taking steps to improve its workforce planning, hiring,  technology utilization, and performance assessment could better position  EOIR to address its case backlog and help improve the agency’s overall  effectiveness and efficiency in carrying out its important mission.

EOIR has begun to address its workforce needs through its contract for  workforce planning support and other recently-initiated efforts. However,  EOIR could be better positioned to address its current and future staffing  needs by developing and implementing a strategic workforce plan that  addresses key principles for effective strategic workforce planning, such  as the determination of critical skills and competencies. Furthermore,  assessing its hiring process, developing a hiring strategy, and taking  actions to increase its efficiency could allow EOIR to hire judges more  quickly and address immigration judge staffing gaps, which in turn could  improve EOIR’s overall operations and help reduce the immigration  courts’ case backlog.

EOIR could improve accountability and further empower the immigration  courts to address the case backlog and strengthen operations by  improving how the agency leverages technology. Specifically, identifying  and establishing an oversight body and documenting and implementing a  plan that is consistent with best practices for exercising oversight over  ECAS until it is fully implemented would better position the agency to  implement ECAS, thus providing efficiencies to assist the courts with  addressing the backlog. Further, as EOIR takes steps that may result in  increased use of VTC for hearings, which EOIR management officials  cited as beneficial to addressing the agency’s caseload, collecting and  analyzing data, such as data on appeals in which the use of VTC formed  some basis for the appeal, could provide EOIR with further assurance  that its use of VTC in immigration hearings is outcome-neutral.  Additionally, soliciting feedback from respondents could help EOIR better  ensure that its VTC program meets the needs of all users, including  respondents whose cases are heard and decided through VTC.

Taking steps to improve how it assesses performance could also help  EOIR identify effective management approaches that could help address  the backlog. In particular, establishing comprehensive case completion  goals would help EOIR more effectively monitor its performance. In  addition, systematically analyzing the cause of certain continuances,  particularly operational continuances, could provide EOIR with valuable  information about potential challenges the immigration courts may be  experiencing or areas that may merit additional guidance and training.  Updating policies and procedures to ensure the timely and accurate  recording of NTAs would provide EOIR greater assurance that its case  management data are accurate—including the size of its case backlog.  Further, improving the reliability of these data would allow EOIR to  provide more accurate information in DOJ’s Annual Performance Report,  which would give external stakeholders, including Congress and the  public, a more accurate understanding of case completion times.

section_title: Recommendations for Executive Action
paragraphs: To better address current and future staffing needs, we recommend that  the Director of EOIR develop and implement a strategic workforce plan  that addresses, among other areas, key principles of effective strategic  workforce planning, including (1) determining critical skills and  competencies needed to achieve current and future programmatic results;  (2) developing strategies that are tailored to address gaps in number,  deployment, and alignment of human capital approaches for enabling and  sustaining the contributions of all critical skills and competencies; and (3)  monitoring and evaluation of the agency’s progress toward its human  capital goals and the contribution that human capital results have made  toward achieving programmatic results.

To better address EOIR’s immigration judge staffing needs, we  recommend that the Director of EOIR: (1) assess the immigration judge  hiring process to identify opportunities for efficiency; (2) use the  assessment results to develop a hiring strategy that targets short- and  long-term human capital needs; and (3) implement any corrective actions  related to the hiring process resulting from this assessment.

To help ensure that EOIR meets its cost and schedule expectations for  ECAS, we recommend that the EOIR Director:  identify and establish the appropriate entity for exercising oversight  over ECAS through full implementation, and document and implement an oversight plan that is consistent with best  practices for overseeing IT projects, including (1) establishing how the  oversight body is to monitor program performance and progress  toward expected cost, schedule, and benefits; (2) ensuring that  corrective actions are identified and assigned to the appropriate  parties at the first sign of cost, schedule, or performance slippages;  and (3) ensuring that corrective actions are tracked until the desired  outcomes are achieved.

To provide further assurance that EOIR’s use of VTC in immigration  hearings is outcome-neutral, we recommend that the Director of EOIR:

Collect more complete and reliable data on the number and type of  hearings it conducts through VTC;

Collect data on appeals in which the use of VTC formed some basis  for the appeal, and the number of in-person hearing motions filed; and

Use these and other data to assess any effects of VTC on immigration  hearings and, as appropriate, address any issues identified through  such an assessment.

To further ensure that EOIR’s VTC hearings meet all user needs and help  EOIR identify and address technical issues with VTC hearings, we  recommend that the Director of EOIR develop and implement a  mechanism to solicit and monitor feedback from respondents regarding  their satisfaction and experiences with VTC hearings, including the audio  and visual quality of the hearing.

To better assess court performance and use data to identify potential  management challenges, we recommend that the Director of EOIR take  the following actions:

Establish and monitor comprehensive case completion goals,  including a goal for completing non-detained cases not currently  captured by performance measures, and goals for cases it considers  a priority;

Systematically analyze immigration court continuance data to identify  and address any operational challenges faced by courts or areas for  additional guidance or training; and

Update policies and procedures to ensure the timely and accurate  recording of NTAs.

section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DOJ, including EOIR; ACUS; the  Administrative Office of the U.S. Courts; VA; CAVC; SSA; and DHS for  their review and comment. EOIR provided written comments, which are  reproduced in appendix V; the remainder of the agencies did not provide  written comments. DOJ, EOIR, the Administrative Office of the U.S.  Courts, VA, SSA, and DHS provided technical comments, which we  incorporated as appropriate.

In its written comments, EOIR stated that it agrees with most of our 11  recommendations and has begun to address them. However, the steps  EOIR described taking do not fully address our recommendations. In  addition, EOIR did not specifically state whether or not it agrees with  individual recommendations. Rather, EOIR provided comments on the  recommendations in five areas: (1) strategic workforce planning, (2)  immigration judge staffing, (3) ECAS (EOIR’s new comprehensive e-filing  effort), (4) VTC, and (5) court performance and management.

With regard to the first area, strategic workforce planning, which includes  our recommendation that EOIR implement a strategic workforce plan that  addresses key principles of effective strategic workforce planning, EOIR  stated that it recognizes the importance and benefits of strategic  workforce planning, including the need to monitor and evaluate results.  To this end, EOIR stated that it has a contract in place to determine the  critical skills and competencies used in the immigration courts, particularly  at the legal assistant level, and to then produce a workforce staffing  model to achieve current and future operational and programmatic  results. As discussed in this report, EOIR’s initial contract for the  workforce planning report requires the development of a method or  formula for assessing the need for additional immigration judges and  staff. However, the contract documentation EOIR provided to us does not  specifically require the contractor to identify critical skills and  competencies or tailor identified requirements to current or future  programmatic results. We agree with EOIR that this contract is a positive  step, but we continue to believe that EOIR would further benefit from  developing and implementing a strategic workforce plan that addresses,  among other areas, key principles of effective strategic workforce  planning.

Regarding the second area, immigration judge staffing, which includes  our recommendation that EOIR assess the immigration judge hiring  process, EOIR stated that it has assessed this process, is implementing a  hiring streamlining plan announced by the Attorney General on April 11,  2017, and is committed to assessing the immigration judge hiring process  on an ongoing basis. Specifically, EOIR stated that it has continually  assessed its hiring process and made significant improvements. As  discussed in this report, we found that while EOIR has undertaken efforts  to improve aspects of its hiring process, it has not assessed its hiring  process or developed a hiring strategy that is targeted to fill short- and  long-term human capital needs consistent with best practices. For  example, EOIR did not provide documentation demonstrating that it has  systematically assessed its hiring process to identify opportunities for  efficiency. Further, with regard to the recent hiring streamlining plan, this  plan will, according to EOIR, change how it announces immigration judge  positions, evaluates the files of candidates at both the agency- and  department-levels, and approves candidates to enter on duty. EOIR  expects, according to its comments, that it will reduce the amount of time  it takes to hire immigration judges in the future. EOIR’s development of a  hiring plan is a positive step toward addressing our recommendation;  however, to fully address the intent of our recommendation, the agency  needs to provide documentation demonstrating that it has assessed the  immigration judge hiring process, developed a hiring strategy that targets  short- and long-term human capital needs, and implemented any  necessary corrective actions.

With respect to the third area, ECAS, regarding our recommendation that  EOIR identify and establish the appropriate entity for exercising oversight  over ECAS through full implementation, EOIR stated that it established an  ECAS Executive Committee to provide effective oversight through the  development and implementation of the ECAS solution. EOIR further  stated that it established the Investment Review Board to review  proposals for major IT investments exceeding $1 million and believes that  in the future the ECAS Executive Committee, its subgroups, and the  Investment Review Board will serve as vital institutions within EOIR to  help ensure the effective oversight of ECAS implementation. EOIR also  stated that it is committed to establishing the appropriate oversight body  and while it fully intends to do so, it is not yet at the stage where this  oversight body could make resource allocation decisions to implement a  comprehensive e-filing system. As discussed in this report, according to  the ECAS Executive Committee charter, the committee will dissolve after  1 year when the ECAS roadmap for eventually determining the solution is  identified. Additionally, as discussed in this report, EOIR OIT officials  stated that the EOIR Investment Review Board was never intended to  oversee ECAS implementation due to the detailed nature of this system’s  implementation, and EOIR has not yet designated an oversight entity or  documented a plan for overseeing ECAS during critical stages of its  development and implementation. Given the ambiguity in EOIR’s plans  for overseeing ECAS through full implementation and its need to better  manage its longstanding efforts to develop a comprehensive e-filing  system, we continue to believe that the agency would benefit from (1)  identifying the appropriate entity for exercising oversight over ECAS  through full implementation and (2) documenting and implementing an  oversight plan that is consistent with best practices for overseeing IT  projects.

With regard to the fourth area, EOIR’s use of VTC to conduct hearings,  which includes our four recommendations that the agency, among other  things, collect more complete and reliable data on its use of VTC in  hearings and develop a mechanism to solicit feedback from respondents  on these hearings, EOIR stated that it is committed to the effective  utilization of VTC in immigration court proceedings. Specifically, EOIR  stated that although the U.S. Courts of Appeals have repeatedly upheld  the use of VTC in immigration hearings as comporting with due process  requirements, EOIR is amenable to collecting additional data on the  number and type of hearings conducted by VTC, as well as identifying  appeals that raise the use of VTC as a basis for appeal. EOIR agreed that  such data collection may assist the agency in identifying and addressing  technical issues associated with VTC, as well as any possible effects on  case outcomes that may relate to the use of VTC in immigration  proceedings. If effectively implemented, this additional data collection  should help address the intent of our recommendations focused on  collecting more complete and reliable VTC hearing data. To fully address  the intent of our recommendations for EOIR to collect data on the number  of in-person hearing motions filed and how the agency might use these  and other data to assess any effects of VTC on immigration hearings,  EOIR needs to take additional actions focusing on the collection and  analysis of VTC data.

In response to our other VTC-related recommendation that EOIR develop  and implement a mechanism to solicit and monitor feedback from  respondents on their VTC hearings, EOIR stated that while EOIR is  committed to making additional improvements to its VTC program, it is  not feasible to solicit accurate and useful feedback concerning VTC from  respondents in removal proceedings, which are inherently adversarial. As  discussed in this report, to mitigate the concern that immigration hearings  are inherently adversarial, EOIR could collect respondent feedback after  a hearing, but not necessarily after the immigration judge has decided the  case. Specifically, because some cases entail multiple hearings, EOIR  could collect feedback after a VTC hearing but prior to the conclusion of  the case and respondents knowing the outcome. Therefore, we continue  to believe that developing and implementing a mechanism to solicit and  monitor feedback from respondents regarding their satisfaction and  experiences with VTC hearings could help EOIR further ensure that its  VTC hearings meet all user needs and identify and address technical  issues.

With regard to the fifth area related to court performance, EOIR stated  that it agrees with the recommendations to establish and monitor  comprehensive case completion goals, analyze continuance data, and  update guidance for recording NTAs. Specifically, EOIR stated that it  should measure case completions in all categories and the agency will  study whether to refine its current capabilities. EOIR also stated that it  supports conducting additional analysis of immigration court continuance  data and recognizes that additional guidance or training regarding  continuances may be beneficial to ensure that immigration judges use  continuances appropriately in support of EOIR’s mission to adjudicate  immigration cases in a careful and timely manner.

In addition to providing comments on our recommendations, EOIR also  took issue with certain aspects of our methodology and findings. In  particular, EOIR stated that the report would benefit from additional  context and information in four areas: (1) pending caseload; (2) workforce  planning; (3) electronic case management, e-filing, and VTC; and (4)  performance measurements.

First, in regard to pending caseload, EOIR stated that the report is  missing a contextualized discussion of why its caseload has grown.  Specifically, EOIR stated that the report does not discuss various factors  affecting its pending caseload, such as increasing case complexity;  growth in the number of applications for relief, bond hearings, and  detained cases; changing case priorities; and a decrease in immigration  court staff. However, this report discusses EOIR’s perspective on factors  that contributed to increases in the case backlog along with perspectives  from DHS attorneys and other experts and stakeholders. For example,  this report discusses EOIR’s perspective that a surge in new cases,  beginning in 2014, contributed to the case backlog. Additionally, this  report notes that EOIR officials and immigration judges highlighted  increasing legal complexity as a contributing factor to longer cases and a  growing case backlog. Further, this report states that EOIR officials cited  Supreme Court decisions in 2013 and 2016, which define analytical steps  a judge must complete in determining whether a criminal conviction  renders a respondent removable and ineligible for relief. In regard to the  effect of immigration court staffing on the case backlog, this report  discusses the number of case completions per judge from fiscal year  2006 through 2015 and found that the number of immigration judges  increased during this period.

Second, in regard to workforce planning, EOIR stated that our report did  not sufficiently account for changes in the immigration judge hiring  process, such as those due to a hiring freeze, and that our methodology  and results in assessing the length of the hiring process, including the  background investigation phase, were unclear and differed from EOIR’s  own analysis. Specifically, EOIR stated that our analysis covered a period  during which the agency was subject to a hiring freeze—January 2011  through February 2014. However, this report both discusses EOIR  officials’ perspective that this hiring freeze prolonged the hiring process  and includes our analysis of the time it took EOIR to hire immigration  judges after the hiring freeze ended. Specifically, as discussed in this  report, when we only included hires initiated after the hiring freeze ended  in February 2014, we found that EOIR took an average of 647 days to  hire an immigration judge.

Regarding our methodology, we describe in this report how we  determined the overall length of the hiring process, as well as phases of  the hiring process. For instance, as discussed in this report, to calculate  the average time it took EOIR to hire an immigration judge, we calculated  the average number of calendar days between the day EOIR posted a  vacancy announcement for the position and the day the judge started in  the position. In regard to our hiring analysis results, EOIR stated that,  according to its own hiring analysis, for the 87 judge positions filled since  the start of fiscal year 2016, the average number of days it took EOIR to  hire these judges was 485 days, which differs from our result of 647 days.  We would expect our results to differ from EOIR’s because we analyzed  data for a different and longer period of time—February 2014 to August  2016 instead of only fiscal year 2016.

EOIR also raised concerns with our analysis of the time it took the  department to complete background investigations during the hiring  process. Specifically, EOIR stated that it could not replicate our finding of  41 days to complete this phase of the hiring process. EOIR may not have  been able to replicate our analysis because it assessed data for a  different period of time than we did. Our sample included all judges who  had entered on duty by August 2016, whereas EOIR’s sample included  judges who had only completed background investigations—but had not  necessarily entered on duty—by August 2016. Additionally, EOIR stated  that that it is likely that the sample we used provides an inaccurate  reflection of the length of this phase because it likely represents federal  employees who already had a background investigation in place or being  processed and, as a result, does not accurately reflect the time it takes to  complete an investigation for non-federal employees. However, our  analysis of the hiring process, including the background investigation  phase, included all judges—both federal and non-federal employees— and thus proportionately considered the time it took to conduct  background investigations for non-federal employees hired during the  period we examined.

Third, EOIR raised concerns regarding our approaches for assessing  EOIR’s electronic case management, e-filing, and VTC program efforts.  Specifically, EOIR stated that the report focuses on its prior electronic  case management initiatives only as they relate to the agency’s ability to  fully implement a comprehensive e-filing system and does not  acknowledge that these initiatives were critical in operating the courts and  positioning the agency to be able to implement an e-filing system.  However, this report describes several systems which, according to  EOIR, are foundational to a comprehensive e-fling system, such as the  case management, digital audio recording, eInfo, and eRegistration  systems. For instance, as discussed in this report, the digital audio  recording system EOIR implemented that allows the immigration courts to  digitally record immigration hearings and provide an electronic transcript  of the hearings was, according to EOIR OIT officials, a key capability they  needed to develop before implementing a comprehensive e-filing system.

Additionally, EOIR disputed our finding that it could further ensure that Its  VTC program meets user needs by collecting feedback from respondents  on their VTC hearings because it believes the finding relied almost  exclusively on anecdotal statements from interviews with immigration  court officials, experts, and stakeholders. We did, in part, base our finding  on interviews with judges, administrators, and DHS attorneys assigned to  a non-probability sample of six immigration courts, and our interviews with  10 immigration court experts and stakeholders identified through a  detailed selection process, as described in appendix I. However, as  described in this report, we primarily assessed EOIR’s implementation of  its VTC program against ACUS best practices for using VTC in hearings,  along with evidence from EOIR officials responsible for implementing the  VTC program that the agency does not systematically collect feedback on  VTC immigration hearings from respondents. Specifically, the ACUS best  practices recommend that agencies maintain open lines of  communication with participants to receive feedback about the use of  VTC for the hearing, and that agencies use post-hearing surveys or other  appropriate methods to collect information about participants’ experiences  and satisfaction with the VTC hearing. The information from our  interviews with immigration court officials, experts, and stakeholders  provided insights and examples into some of the circumstances and  challenges associated with the use of VTC in hearings and why it could  be important for EOIR to solicit and monitor feedback from respondents  regarding their VTC hearings.

Fourth, in regard to performance measurement, EOIR stated that we  conflated performance measurements and case completion goals and  that the 11 case completion goals that the agency previously had were a  hindrance to the efficient processing of cases. Standards for Internal  Control in the Federal Government define a performance measure as a  means of evaluating the entity’s performance in achieving objectives and  quantitative objectives are those where performance measures may be a  targeted percentage or numerical value. Since case completion goals,  as described in this report, measure whether immigration judges are  completing a specific percentage of cases within a specified time frame  and thus meet the definition of a performance measure, we viewed case  completion goals as performance measures. As discussed in this report,  in fiscal year 2010 EOIR eliminated and condensed several of its 11  performance goals, leaving five total performance goals for case  completion times. We acknowledge in this report EOIR’s perspective that  when all cases are subject to case completion goals, EOIR staff do not  know which cases to prioritize. For example, as discussed in this report,  EOIR officials stated that tracking case completion goals for non-priority  cases, such as non-detained cases, would limit the agency’s ability to  focus on meeting case completion goals for prioritized cases. However,  as discussed in this report, EOIR does not have case completion goals  for some of the cases it considers priorities, such as individuals who have  been released from detention pursuant to a Rodriguez bond hearing.  Further, as discussed in this report, such goals would not preclude EOIR  from reflecting agency priorities by assigning priority cases a shorter case  completion goal, a larger percentage goal, or both.

EOIR also raised concerns regarding how we describe case completion  goals for prioritized cases in the report. Specifically, EOIR stated that  while it acknowledges that it has not recently met the case completion  goals for its top priority—detained cases—this is due, in part, to the  addition of new priorities in 2014. We acknowledge in this report that,  while detained cases were a priority prior to 2014, EOIR began in 2014 to  also prioritize the cases of detained recent border crossers,  unaccompanied children, and families held in detention or released on  alternatives to detention. Additionally, EOIR stated that, contrary to what  we described in this report, it had case completion goals for its 2014  priorities and that it met all of these goals, which were to schedule these  cases within specified timeframes. However, as discussed in this report,  EOIR identified certain types of cases as priorities for adjudication and  issued guidance to courts on how to prioritize these cases through their  scheduling of hearings, but EOIR has not established goals to ensure the  timely completion for all of these cases. EOIR also clarified in its written  comments that, contrary to what we described in our draft report, it  includes cases involving unaccompanied children in the care and custody  of the Department of Health and Human Services, Office of Refugee  Resettlement who do not have a sponsor in the detained case category  for case completion goal purposes. We amended the report to reflect this  clarification.

We are sending copies of this report to the appropriate congressional  committees, the Attorney General, the Secretary of Homeland Security,  and other interested parties. In addition, the report is available at no  charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-8777 or gamblerr@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix VI.

section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This report addresses (1) what Department of Justice’s (DOJ) Executive  Office for Immigration Review (EOIR) data indicate about its caseload,  including the backlog of cases, and potential contributing factors and  effects of the backlog according to stakeholders; (2) how EOIR manages  and oversees immigration court operations, including workforce planning,  hiring, and technology utilization; (3) the extent to which EOIR has  assessed immigration court performance, including analyzing relevant  information, such as data on case continuances; and (4) scenarios that  have been proposed for restructuring EOIR’s immigration court system  and the reasons that have been offered for or against these proposals.

To address all four objectives, we analyzed agency documentation,  consulted with immigration court system experts and stakeholders, and  interviewed headquarters officials from EOIR and the Department of  Homeland Security (DHS). Specifically, we reviewed, among other  documentation: policies and procedures for immigration court operations;  manuals describing EOIR’s case management system; contractual  documents, such as contractual documents for EOIR’s workforce  planning study; EOIR’s plans for implementing a comprehensive  electronic filing system; and reports related to the agency’s performance  assessment system and case completion goals. We also interviewed  selected experts and stakeholders on the immigration court system and  reviewed publications related to the effects of the case backlog on court  stakeholders, EOIR’s management and oversight of the immigration court  system, and proposals for restructuring the immigration court system.  Additionally, we interviewed EOIR headquarters officials from the Office  of the Chief Immigration Judge (OCIJ), which oversees the immigration  courts, and the Offices of Administration; General Counsel; Information  Technology; and Planning, Analysis, and Statistics. We also interviewed  headquarters officials from the U.S. Immigration and Customs  Enforcement (ICE) Office of the Principal Legal Advisor (OPLA), the office  responsible for overseeing the DHS attorneys who represent the  government in immigration proceedings at the courts, to obtain their  perspectives regarding any effects of the case backlog on DHS and EOIR  management and oversight of the immigration courts.

Additionally, we visited a non-probability sample of six immigration courts  in Baltimore, Maryland; Chicago, Illinois; Houston, Texas; Port Isabel,  Texas; San Francisco, California; and Seattle, Washington to interview  immigration court staff and observe immigration hearings. Toward  maximizing the diversity of the sites we visited, we selected them to  include courts with relatively large and small case backlogs; relatively  high and low case completions per judge; a large number of detained  cases, which are deemed a priority by EOIR; and that have experienced  staffing shortfalls. We also selected courts in different geographic regions  and courts that are proximate to other courts. At each court we conducted  semi-structured interviews with immigration judges and DHS attorneys  assigned to OPLA’s Offices of the Chief Counsel proximate to each  immigration court and observed a variety of hearings, including master  calendar and individual merits hearings. We interviewed court  administrators in five immigration courts and observed hearings  conducted by video-teleconferencing (VTC) in three of the immigration  courts we visited. In total, we interviewed 12 judges, 4 court  administrators, and 12 DHS attorneys from six offices. Because  immigration judges have large caseloads and constrained schedules, we  interviewed judges who were available to speak with us during our  scheduled visits. For the immigration court staff interviews, we asked  questions about (1) the court’s case receipts, completions, backlog of  cases over time, and any causes or effects of the backlog on  stakeholders; (2) EOIR’s management and oversight of the court,  including court staffing, hiring, and technology utilization; and (3) how  EOIR assesses the court’s performance. For the DHS attorney interviews,  we asked questions about any effects case backlogs have had on their  work; their views on the court’s case management practices, including the  use of technology and coordination between the immigration courts and  DHS; and scenarios proposed by experts and stakeholders for  restructuring the immigration court system. Since we selected a non- probability sample of courts to visit, the information we obtained cannot  be generalized more broadly to all immigration courts. However, it  provides important context and insights into EOIR’s case backlog,  particularly effects of the backlog on court stakeholders, EOIR’s  management and oversight of the immigration court system, and expert  proposals for restructuring the immigration court system.

To address our first objective, what EOIR data indicate about its  caseload, including the backlog of cases, and potential contributing  factors and effects of the backlog according to stakeholders, we first  obtained and analyzed data on immigration case receipts and  completions from EOIR’s case management system from fiscal years  2006 through 2015 which covers the period of time since our previous  report on the subject in August 2006 until the last full fiscal year of data  available at the time we began our review in November 2015. We  assessed the reliability of these data by reviewing system documentation,  interviewing knowledgeable officials about system controls, and  conducting electronic testing. We determined that the data were  sufficiently reliable for the purposes of our reporting objectives. We  included in our analysis all immigration court cases received or completed  that were adjudicated by EOIR immigration judges in EOIR immigration  courts or at the Board of Immigration Appeals (BIA). We used these data  to determine the number of new Notices to Appear (NTAs) received from  DHS each fiscal year and the number of cases each court completed  within a fiscal year. We determined the case backlog for each court by  calculating the number of cases that were opened in previous fiscal years  that remained open at the start of the new fiscal year. We also  determined the time immigration courts took to complete cases each  fiscal year by calculating the number of calendar days between the date  EOIR received the NTA from DHS and the date the case was initially  completed, and computed the median of these durations. We further  calculated case completion times for different types of cases, such as  removal, credible fear, and asylum cases, and cases in which the  respondent was detained or not detained. Since later motions to reopen,  remand or redetermine a case can occur many years after the initial  decision and are out of the control of immigration court judges, we  considered a case complete when the judge made an initial ruling on the  case and excluded these later actions from our analysis of case  completions times.

We used the same procedures described above to calculate the case  backlog for appeals cases. To determine the time the BIA took to  complete cases each fiscal year, we calculated the number of calendar  days between the date the appeal was filed and the date the appeal was  completed, and computed the median of these durations. We also  calculated appeal completion times for different types of appeals such as  appeals of removal cases, appeals of other decisions by immigration  judges such as appeals of bond redeterminations, motions to reopen  when the original case was held in absentia, and interlocutory appeals,  and DHS decisions.

In addition, during our interviews with immigration court judges, court  administrators, DHS attorneys, and 10 experts and stakeholders, the  selection of which we describe further below, we obtained their  perspectives on potential contributing factors for the case backlog as well  as the effects of the backlog on respondents, attorneys, and immigration  staff.

To address our second objective, how EOIR manages and oversees the  immigration court system, we identified and analyzed relevant literature  addressing EOIR’s management of the immigration courts. Specifically, a  GAO research librarian conducted searches of scholarly and peer  reviewed publications; trade and industry articles; association, nonprofit,  and think tank publications; congressional hearings and transcripts;  government reports; dissertations; and general news articles from  January 2000 through November 2015 pertinent to the immigration court  system. The literature search produced 363 related publications, of  which we determined 22 were relevant to this objective by reviewing each  publication’s content for relevancy to EOIR’s management and oversight  of the immigration court system. Following an initial review to further  refine the scope of publications most relevant to this objective, an  additional GAO analyst then independently reviewed these reports to  identify the most commonly cited management issues affecting the  immigration court system. Any differences between their assessments  were reconciled to reach agreement on the management issues. This  process identified workforce planning and hiring, technology utilization,  and performance assessment—the focus of our third objective—as the  most prominent issues raised by these publications related to EOIR’s  management and oversight of the immigration court system.

To assess EOIR’s workforce planning efforts, we analyzed documents  related to its workforce planning initiatives and contract, such as the  contractor-provided blanket purchase agreement describing the  deliverables, and interviewed EOIR headquarters OCIJ and Office of  Administration officials about how it determines its workforce needs. We  then assessed EOIR’s workforce planning and hiring processes against  GAO’s key principles for effective strategic workforce planning and  human capital self-assessment checklist, which provides human capital  guidance for agencies. We also reviewed EOIR’s most recent Strategic  Plan, which covered 2008-2013, to understand the agency’s workforce  planning goals.

To assess EOIR’s hiring efforts, we analyzed data on the number of  immigration judges it was authorized by Congress to hire and the number  of immigration judges who had entered on duty for fiscal years 2006  through 2015. We also analyzed data related to timeframes for hiring  immigration judges from fiscal years 2011 through August 2016 to  determine the length of the hiring process. Specifically, through interviews  with EOIR officials, we identified two sources of data on the agency’s  hiring timeframes for new immigration judges: (1) hard copy personnel  files for all immigration judges hired since fiscal year 2011; and (2) a  spreadsheet tracking key dates for hiring immigration judges that the  agency developed in fiscal year 2015. Through reviewing these sources  we observed that EOIR’s personnel files generally included the date a  judge applied for a position and entered on duty, but not detailed interim  dates, such as those associated with background checks. In contrast, the  agency’s spreadsheet included such detailed information. To capture both  the longer time period encompassed by the personnel files and more  detailed dates in EOIR’s spreadsheet, we collected and analyzed data  from both sources. Specifically, for judges hired from fiscal year 2011  through February 2016, we reviewed hard copy personnel files and  collected available dates in the hiring process using a data collection  instrument. To ensure sufficient data reliability, two GAO staff  independently reviewed each hiring file and then reconciled any  discrepancies between the data collected. For judges hired from fiscal  year 2015 until August 2016, we used the tracking spreadsheet as the  primary source of hiring data. We assessed the reliability of data in this  spreadsheet by comparing a sample of dates in it to those in  corresponding personnel files. We also gathered information on the  reliability of the hiring data through interviews with EOIR headquarters  officials and determined that the data in both the personnel files and  tracking spreadsheet were sufficiently reliable for the purposes of our  reporting objectives.

Using the results of our file review and the tracking spreadsheet, we  developed a consolidated file with all available dates in the hiring process  for immigration judges who were hired and entered on duty from fiscal  years 2011 through August 2016. We then analyzed these data to  determine average total hiring time for all judges as well as average time  for interim steps in the hiring process for judges who were hired and  entered on duty from fiscal year 2015 through August 2016.

We also interviewed EOIR headquarters officials to obtain information on  the agency’s hiring process for immigration judges, including reasons for  any delays, and any efforts to assess the process. We assessed EOIR’s  hiring process against GAO’s human capital self-assessment checklist, a  diagnostic tool for managers to use in assessing their agencies’ human  capital policies and practices.

To assess how EOIR utilizes technology in the immigration courts,  particularly its efforts to implement a comprehensive electronic-filing (e- filing) system and its use of VTC for immigration hearings, we reviewed  pertinent agency documentation, interviewed EOIR headquarters and  immigration court officials from the six courts we visited, and observed  technology use during these site visits. We analyzed available  documentation related to EOIR’s e-filing efforts since 2001—when the  agency initiated efforts to implement an e-filing system—such as a 2001  executive staff briefing and a 2005 alternatives analysis. For EOIR’s most  recent comprehensive e-filing effort, the EOIR Court and Appeals  Systems (ECAS), we analyzed, among other documents, the ECAS  project plan, business requirements, and ECAS Executive Committee  Charter. Regarding VTC use, we reviewed documentation such as the  Immigration Judge Benchbook and VTC training materials, to determine  how immigration judges are to use VTC for immigration hearings.

Additionally, we interviewed EOIR officials from its Office of Information  Technology—responsible for implementing technology at EOIR—and  immigration court staff at the six immigration courts we visited to obtain  information on EOIR’s efforts to implement a comprehensive e-filing  system, including their perspectives on how an e-filing system would  affect immigration court operations. To understand how EOIR manages it  VTC program, including any efforts to assess and collect feedback on this  program, we interviewed the OCIJ official responsible for implementing  the program. We also interviewed immigration court officials at all six  immigration courts and observed a range of hearings held by VTC at  three of the courts we visited to gather information on the audio and  visual quality and other operational aspects of VTC hearings. Additionally,  we interviewed DHS attorneys from OPLA’s Offices of the Chief Counsel  assigned to each immigration court we visited and selected experts and  stakeholders on the immigration court system to obtain their perspectives  on EOIR’s ongoing development of a comprehensive e-filing system and  the benefits and challenges of VTC hearings. We assessed EOIR’s effort  to implement a comprehensive e-filing system against best practices for  developing and acquiring technology, including oversight of information  technology projects. In addition, we assessed EOIR’s implementation of  its VTC program against best practices established by the Administrative  Conference of the United States (ACUS) that provide technical,  operational, and environmental guidance on how agencies may  implement or improve their use of VTC in administrative hearings and  related proceedings.

To address our third objective on the extent to which EOIR has assessed  immigration court performance, we analyzed EOIR’s performance  monitoring activities and measures from fiscal year 2006 through fiscal  year 2015. Specifically, we reviewed internal and external documentation  related to performance measures and goals, such as internal quarterly  reports on case completion times, to determine the extent to which EOIR  has established performance measures, met its goals, and has  performance measures in place that reflect the majority of its caseload  and case priorities. Furthermore, we reviewed DOJ documents, such as a  DOJ Office of Inspector General report and DOJ’s Annual Performance  Reports, to gain additional context for how DOJ uses EOIR’s performance  information to assess agency and departmental efforts to meet its  strategic objective of adjudicating all immigration cases promptly and  impartially. We also interviewed EOIR officials, including OCIJ officials,  on EOIR performance measures and goals, and other performance  monitoring activities, such as the Immigration Court Evaluation Program.  We further analyzed data from EOIR’s case tracking and management  system to determine how these data support EOIR’s performance  monitoring activities. As previously mentioned, we determined that these  EOIR data were sufficiently reliable for the purposes of this report.  Specifically, we calculated the percentage of EOIR’s caseload that may or  may not be subject to performance goals, and determined the number of  priority cases for which EOIR has received NTAs for which it does and  does not have case completion goals. We assessed EOIR’s performance  monitoring activities and measures against Standards for Internal Control  in the Federal Government, EOIR’s most recent strategic plan covering  fiscal years 2008 through 2013, and best practices on using performance  information for management decisions.

To assess EOIR’s use of continuance data to guide court operations, we  also analyzed EOIR’s data on case continuances from fiscal years 2006  through 2015 to determine the number and type of case continuances  that judges have issued. We analyzed EOIR’s guidance to judges on the  use of continuances as well as EOIR’s practices related to these data and  EOIR’s practices against Standards for Internal Control in the Federal  Government.

We further used EOIR’s data on NTAs to determine the extent to which  EOIR is recording NTAs in a timely and accurate manner. Specifically, we  compared the date EOIR received the NTA from the DHS to the date that EOIR entered the NTA into its case management system. We also  reviewed EOIR guidance related to entering NTAs and interviewed EOIR  and DHS attorneys about practices related to the recording of NTAs in a  timely and accurate manner. We then compared this information to  Standards for Internal Control in the Federal Government governing  information and communication.

To address the fourth objective, what scenarios have been proposed for  restructuring the immigration court system, we obtained information on  restructuring scenarios, including reasons for and against these  proposals, from experts and stakeholders on the immigration court  system. To select the experts and stakeholders, we first reviewed  relevant literature on the immigration court system, particularly proposals  for restructuring the system. Similar to the search we conducted for  literature on EOIR’s management of the immigration courts, a GAO  research librarian conducted searches of scholarly and peer reviewed  publications; trade and industry articles; association, nonprofit, and think  tank publications; congressional hearings and transcripts; government  reports; dissertations; and general news articles from 2000 through  January 2016 pertinent to proposals for immigration court system  restructuring. We also reviewed literature identified as relevant by  GAO’s Office of General Counsel as well as individuals affiliated with  academia and legal associations.

This literature search produced 21 related publications, which we  reviewed for relevance to this objective and methodological quality, and  determined that 9 publications were appropriate to use to identify experts  and stakeholders. Specifically, through this review, we identified an initial  list of experts and stakeholders who had published at least one  publication examining one or more aspects of a potential restructuring of  the immigration court system in a refereed medium, such as journal  articles and think tank studies. These experts and stakeholders included  individuals, such as law professors, and groups, such as the American  Bar Association. To assess the methodological quality of the selected  expert’s and stakeholder’s studies, we reviewed the analytical methods  used in the research, eliminated some research if we felt the methods  were not appropriate or rigorous, and then summarized the research  findings. After selecting experts and stakeholders based on their  published work, we also considered their type and depth of experience  with the immigration court system. Specifically, we gathered information  on the experts’ and stakeholders’ affiliations with any organizations, such  as professional associations or nonprofit groups, and their years of  experience studying or working with the immigration court system, and if  a group, the source of funding for this group. We also considered those  individuals and groups recommended by EOIR as experts on the  immigration court system and by the experts and stakeholders  themselves. We evaluated these recommendations based on the number  of times an individual or organization was cited as a credible expert or  stakeholder and the type of experience and background of the cited  expert or stakeholder to help ensure diversity and inclusiveness among  our selected experts and stakeholders. Toward maintaining EOIR’s  impartiality as an office within DOJ, EOIR officials elected not to provide  perspectives on how, if at all, the immigration courts should be  restructured or associated advantages and disadvantages. To mitigate  the absence of EOIR officials’ perspectives on restructuring, we also  considered whether experts and stakeholders recommended by other  experts and stakeholders had formerly worked for EOIR in selecting our  sample of experts and stakeholders.

We selected the following 10 individuals and organizations as experts and  stakeholders to interview:  1.  American Bar Association: Established in 1878, the bar is a voluntary  organization whose mission is to support the legal profession by  providing resources to attorneys and accrediting law schools, among  other things.  2.  American Immigration Lawyers Association: Non-partisan national  association of attorneys and law professors who practice and teach  immigration law.  3.  Appleseed Network and the Chicago Appleseed Fund for Justice:  Research, education, and advocacy organization that works to  achieve reform by addressing policies and practices that relate to  social justice and government effectiveness issues.  4.  Lenni Benson and Russell Wheeler: Lenni Benson—a Professor of  Law at New York Law School—and Russell Wheeler, President of the  Governance Institute and Visiting Fellow at the Brookings Institution,  co-authored a report on the immigration court system for ACUS. The  views and opinions they expressed were their own, and not those of  the ACUS. We considered them as one of our experts and  stakeholders.  5.  Federal Bar Association: Dedicated to the advancement of the  science of jurisprudence and to promoting the welfare, interests,  education, and professional development of all attorneys involved in  federal law.  6.  Heartland Alliance’s National Immigrant Justice Center: Provides  direct legal services to, and advocates for, immigrants, refugees, and  asylum seekers through policy reform, impact litigation, and public  education.  7.  Eliza Klein: Former immigration judge who served on the Miami,  Florida; Boston, Massachusetts; and Chicago, Illinois immigration  courts from 1994 to 2015.  8.  National Association for Immigration Judges: Designated as the  recognized representative for collective bargaining for all U.S.  immigration judges.  9.  Angelo Paparelli: Private bar immigration attorney and partner in the  Business Immigration Practice Group of Seyfarth Shaw LLP.  10. Paul Wickham Schmidt: BIA Chairman and member from 1995 to  2001 and former immigration judge from 2003 to 2016.

We used semi-structured interview questions to gather information from  these experts and stakeholders on scenarios for restructuring the  immigration court system, including reasons for and against various  restructuring proposals. We provided relevant excerpts from our draft  report to these experts and stakeholders to confirm the accuracy of the  information they provided. These entities may not be representative of the  universe of experts and stakeholders on the immigration court system  and therefore may not represent all views on this topic; however, their  views provide insights on proposals for restructuring the immigration court  system.

In addition, we interviewed officials and reviewed related documentation  from existing court and adjudicatory systems that could, according to the  experts and stakeholders we interviewed, serve as examples of the  possible court structures. The existing systems were the U.S. Bankruptcy  Courts, the Social Security Administration’s Office of Disability  Adjudication and Review, and the Board of Veterans’ Appeals and Court  of Appeals for Veterans Claims.

To identify the potential effects of restructuring on immigration court  system costs, we analyzed EOIR budget data from fiscal years 2005  through 2016. Specifically, we obtained and analyzed data regarding  EOIR budget requests and appropriations for this time period, as well as  expenditures for fiscal years 2012 through 2015. In particular, we  determined EOIR’s primary cost categories, such as personnel  compensation and benefits, and expenditures among the immigration  courts, the BIA, and the Office of the Chief Administrative Hearing Officer.

We conducted this performance audit from November 2015 to June 2017  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

section_title: Appendix II: Immigration Court Case Backlog, Case Receipts, and Case Completions, Fiscal Years 2012 through 2015
paragraphs: The Department of Justice’s (DOJ) Executive Office for Immigration  Review (EOIR) conducts immigration hearings at 58 immigration courts  located nationwide. For each court from fiscal years 2012 through 2015,  the following tables provide:

Case backlog—the number of cases pending at the start of the fiscal  year in that court;

New case receipts—the number of new Notices to Appear (NTA) that  the court received from the Department of Homeland Security within  the fiscal year;

Other case receipts—the number of other case receipts that the court  received within the fiscal year, such as cases that were  administratively closed and then reopened or cases remanded from  the Board of Immigration Appeals;

Case completions—the number of cases each court completed within

Change of venue or transfer proceedings—the number of Change of  Venue or Transfer proceedings that the court held within the fiscal  year; and

Total caseload—the total number of cases pending at the start of the  fiscal year and new and other cases referred to the court during the  year.

section_title: Appendix III: Immigration Court Proceedings Continuances, Fiscal Years 2006 through 2015
paragraphs: Judges may continue a case—issue a temporary adjournment of case  proceedings until a different day or time—for a variety of reasons, either  at their own instance or, for good cause shown by the respondent or the  Department of Homeland Security (DHS). For example, an immigration  judge has discretionary authority to grant a motion for continuance to  allow respondents to obtain legal representation or DHS to complete  required background investigations and security checks. The Executive  Office for Immigration Review (EOIR) tracks the extent to which judges  issue continuances and reasons for continuances within its case  management system. EOIR categorizes reasons for case continuances  into approximately 70 different categories, including:

Respondent-related continuances, such as illness of a respondent or  their witness or attorney;

DHS-related continuances, such as the need for more time to prepare  Immigration judge–related continuances, such as unplanned leave or  insufficient time to complete a hearing; and

Operational continuances, such as a lack of a foreign language  interpreter, a video- teleconference (VTC) malfunction, or to allow a  priority case to be heard instead.

Table 10 provides the percentage of completed immigration court cases  by the number of continuances for fiscal years 2006 through 2015, and  table 11 provides the average days to case completion by number of  continuances for fiscal years 2006 through 2015. Table 12 represents the  number of continuances by overall category for each year, as well the  percentage of total continuances and the percentage change of each  category.

Additionally, the following tables provide an overview of immigration  judges’ use of continuances from fiscal years 2006 through 2015:

Table 13 represents the number of respondent-related continuance  reasons, the percentage of total continuances, and the percentage  change of each continuance reason.

Table 14 represents the number of DHS-related continuance reasons,  the percentage of total continuances, and the percentage change of  each continuance reason.

Table 15 represents the number of immigration judge-related  continuance reasons, the percentage of total continuances, and the  percentage change of each continuance reason.

Table 16 represents the number of operational-related continuance  reasons, the percentage of total continuances, and the percent  change of each continuance reason.

section_title: Appendix IV: Additional Characteristics of Selected Court and Adjudicatory Systems and the Immigration Court System
paragraphs: Table 17 provides additional characteristics of selected court and  adjudicatory systems exemplifying the restructuring scenarios proposed  by experts and stakeholders and the current immigration courts and  Board of Immigration Appeals.

section_title: Appendix V: Comments from Department of Justice

section_title: Appendix VI: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact

section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Taylor Matheson (Assistant  Director), David Alexander, Ashley Davis, Kathleen Donovan, Juan  Garcia, Michael Holland, Eric Hauswirth, Benjamin Licht, Grant Mallie,  Sasan J. “Jon” Najmi, Robin Nye, Adam Vogt, and Hannah Weigle made  key contributions to this report.


Question-summary annotations: questions: question: What could EOIR do to address workforce needs?
answer: EOIR has taken some steps to address its workforce needs, such as entering into a contract to determine judicial staff workloads, but does not have a workforce plan that would help EOIR better address staffing needs, such as those resulting from the 39 percent of its immigration judges who are currently eligible for retirement.

question: What practices does EOIR need?
answer: EOIR also does not have efficient practices for hiring new immigration judges, which has contributed to immigration judges being staffed below authorized levels.
child_questions: question: What did GAO find about the current practices EOIR implements?
answer: GAO found that it took an average of 742 days to hire new judges from 2011 through August 2016.

question: How can EOIR be more efficient?
answer: By assessing its hiring process and developing a hiring strategy that targets staffing needs, EOIR would be better positioned to hire judges more quickly and address its staffing gaps.

questions: question: Why do judges issue continuances?
answer: One example of EOIR's efforts to assess court operations is the extent and reasons why judges issue continuances—temporary case adjournments until a different day or time.
child_questions: question: What does GAO's analysis on continuances show?
answer: GAO's analysis of continuance records showed that that the use of continuances increased by 23 percent from fiscal years 2006 through 2015.

question: How could systematically analyzing the use of continuances be beneficial?
answer: Systematically analyzing the use of continuances could provide EOIR officials with valuable information about challenges the immigration courts may be experiencing, such as with operational issues like courtroom technology malfunctions, or areas that may merit additional guidance for immigration judges.

questions: question: What was GAO asked to review?
answer: GAO was asked to review EOIR's management of the immigration court system and options for improving EOIR's performance.
child_questions: question: What does the GAO report address?
answer: This report addresses, among other things, (1) what EOIR data indicate about its caseload, including the backlog of cases; (2) how EOIR manages and oversees immigration court operations, including workforce planning and hiring; and (3) the extent to which EOIR has assessed immigration court performance, including case continuance data.

question: How did GAO collect information for the report?
answer: GAO analyzed EOIR's case data from fiscal years 2006 through 2015—the most current data available—reviewed EOIR documentation, interviewed agency officials, and conducted visits to six immigration courts selected to include courts with relatively large and small case backlogs, among other things. GAO also interviewed experts and stakeholders selected based upon, among other things, their published work on the immigration court system.