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Highlights

What GAO Found

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.

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

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.

Why GAO Did This Study

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.

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Recommendations

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.

Recommendations for Executive Action

Agency Affected Recommendation Status
Executive Office for Immigration Review
Priority Rec.
This is a priority recommendation.
1. To better address current and future staffing needs, the Director of EOIR should 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.
Open
In October 2018, EOIR officials told us that EOIR was developing an agency-wide strategic plan that would address workforce planning, among other issues. In follow-up with EOIR in February 2021, officials indicated that the agency is continuing to develop an agency-wide strategic plan. In addition, EOIR completed a review of the Office of the Chief Immigration Judge workforce in October 2018 that, according to EOIR officials, resulted in a new organizational structure and staffing plan for each immigration court. According to EOIR officials, the staffing plan addresses and mitigates gaps and updates position descriptions to more clearly define roles and responsibilities. These are positive steps, but to fully address our recommendation, EOIR needs to continue to develop, and then implement, a strategic workforce plan that addresses key principles of effective strategic workforce planning. Once this strategic workforce plan is completed, EOIR needs to monitor and evaluate the agency's progress toward its human capital goals.
Executive Office for Immigration Review
Priority Rec.
This is a priority recommendation.
2. To better address EOIR's immigration judge staffing needs, the Director of EOIR should: (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.
Closed - Implemented
In April 2017, the Attorney General approved a revised Immigration Judge hiring process. As part of the development of the revised process, the Office of the Deputy Attorney General, in consultation with EOIR, assessed the immigration judge hiring process, identified opportunities for efficiency, and proposed changes to the hiring process that address those opportunities. In February 2021, EOIR provided a written explanation outlining the agency's strategy for targeting short- and long-term human capital needs. For example, EOIR stated that it tracks vacancies caused by recent and upcoming immigration judge retirements, separations, and transfers, as well as new court locations, and issues hiring announcements quarterly to fill those those vacancies. As a result of these actions, EOIR should be better positioned to address its immigration judge staffing needs. We consider this recommendation closed as implemented.
Executive Office for Immigration Review 3. To help ensure that EOIR meets its cost and schedule expectations for EOIR Courts and Appeals Systems (ECAS), the EOIR Director should identify and establish the appropriate entity for exercising oversight over ECAS through full implementation.
Closed - Implemented
In August 2017, EOIR reported that it had selected the EOIR Investment Review Board to serve as the EOIR Courts and Appeals Systems (ECAS) oversight body with the Office of Information Technology (OIT) directly responsible for the management of the ECAS program. In October 2018, EOIR provided GAO with documentation illustrating that it had designated the Investment Review Board as an oversight entity for a three-year period and reported that this body had met routinely to conduct monitoring and oversight activities. In April 2019, EOIR provided GAO with documentation that the Investment Review Board would serve as the oversight body through the lifecycle of ECAS implementation As a result, EOIR is 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, and this recommendation is closed as implemented.
Executive Office for Immigration Review
Priority Rec.
This is a priority recommendation.
4. To help ensure that EOIR meets its cost and schedule expectations for ECAS, the EOIR Director should 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.
Closed - Implemented
As of April 2019, EOIR reported that it had selected the EOIR Investment Review Board as the ECAS oversight body with the EOIR Office of Information Technology directly responsible for the management of the ECAS program. Since that time, EOIR has shared documents with us that, according to EOIR, collectively serve as its oversight plan for ECAS. In particular, in January 2020, EOIR provided a copy of its Investment Review Guidance, a document that outlines the process, roles and responsibilities, and criteria it uses to assess selected IT investments, including ECAS. EOIR also provided documentation illustrating assessment of the ECAS investment performance towards expected schedule and benefits, and identification of areas where performance was not deemed very good or excellent. In February 2021, EOIR provided a written explanation outlining how the agency monitors ECAS program progress toward expected costs and addresses corrective actions, as needed. For example, EOIR stated that it had appointed an ECAS Program Manager who is responsible for monitoring project costs, schedule, and performance on a full-time basis. As a result of these actions, EOIR should be better positioned to implement ECAS in accordance with its cost, schedule, and operational expectations, and this recommendation is closed as implemented.
Executive Office for Immigration Review 5. To provide further assurance that EOIR's use of video teleconference (VTC) in immigration hearings is outcome-neutral, the Director of EOIR should collect more complete and reliable data on the number and type of hearings it conducts through VTC.
Closed - Implemented
In December 2019, EOIR modified its case management system so that users must manually select the hearing medium type--telephonic, VTC, or in-person--when scheduling a hearing. As a result of this change, EOIR will be better able to collect complete and reliable data on the number and type of hearings conducted by VTC.
Executive Office for Immigration Review 6. To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should 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.
Closed - Implemented
In February 2018, EOIR reported that it initiated a pilot project to collect data on Board of Immigration Appeals (BIA) appeals in which the use of VTC formed some basis for the appeal. In October 2018, EOIR reported that it did not plan to collect data on the number of in-person hearing motions filed due to the burden this data collection would impose on immigration judges. However, in November 2018, EOIR reported that it plans to continue the VTC-based appeals pilot project into the future, as long as the volume of appeals is sufficient to warrant continuing the pilot, in order to collect more data and information on the use of VTC. EOIR's ongoing project to collect data on VTC-based appeals should provide data that EOIR can use to provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, and EOIR has therefore met the intent of our recommendation.
Executive Office for Immigration Review 7. To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should 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.
Open
In December 2019, EOIR modified its case management system so that users must manually select the hearing medium type--telephonic, VTC, or in-person--when scheduling a hearing. In October 2020, EOIR reported implementing a mechanism for the Board of Immigration Appeals to track appeals involving issues related to use of VTC and that between summer 2017 and April 2020, EOIR had received 20 such appeals. To fully address this recommendation, EOIR should analyze the data it collects through the change to its case management system and through its collection of data on appeals in which the use of VTC formed the basis for the appeal to assess any effects of VTC on immigration hearings and, as appropriate, address any issues identified through such an assessment.
Executive Office for Immigration Review 8. To further ensure that EOIR's VTC hearings meet all user needs and help EOIR identify and address technical issues with VTC hearings, the Director of EOIR should 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.
Closed - Implemented
In December 2017, EOIR established a mechanism on its public website to solicit open-ended feedback from respondents regarding their satisfaction with VTC hearings, including the audio and visual quality of the hearing. According to EOIR officials, a group of individuals within EOIR's Office of the Chief Immigration Judge is responsible for monitoring and addressing feedback received through this portal. These actions should help EOIR better ensure that its VTC program meets all users' needs, including respondents whose cases are heard and decided during VTC hearings. As a result, this recommendation is closed as implemented.
Executive Office for Immigration Review 9. To better assess court performance and use data to identify potential management challenges, the Director of EOIR should 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.
Closed - Implemented
In January 2018, EOIR established new court-based performance measures that accounted for the majority of its cases, including non-detained cases. Additionally, EOIR established performance goals for cases it considers a priority. In June 2020, EOIR officials reported the agency had developed and implemented a dashboard to permit EOIR staff to monitor the immigration courts' performance in meeting its new court-based measures. EOIR reported that the dashboard is designed for daily use by court staff to generate reports that measure the status of each performance measure and subordinate performance measures. According to EOIR, the reports serve as actionable documents to targeted court staff. In addition, EOIR reported that the dashboard is also intended for use by EOIR management and leadership for monitoring compliance with the Director's court operations performance measures. Such actions should help EOIR more fully evaluate and effectively monitor whether immigration courts are achieving EOIR's mission. This recommendation is closed as implemented.
Executive Office for Immigration Review 10. To better assess court performance and use data to identify potential management challenges, the Director of EOIR should systematically analyze immigration court continuance data to identify and address any operational challenges faced by courts or areas for additional guidance or training.
Closed - Implemented
EOIR officials reported in April 2019 that EOIR analyzed the continuance data-including information in our report. These officials stated that, as a result of this analysis, EOIR removed case continuance codes from its data system that were obsolete and updated guidance and training to judges. For example, EOIR updated its training materials regarding the proper use of continuances in immigration proceedings for immigration judges and judicial law clerks and provided this training in June 2018 to EOIR attorneys and immigration judges. Additionally, EOIR's Office of Policy, Legal Education and Research Services Division updated its training outlines and presentations in 2018 for new immigration judges and judicial law clerks to more fully address the standards for adjudicating motions to continue. These actions could help EOIR meet its goals for completing cases in a timely manner and this recommendation is closed as implemented.
Executive Office for Immigration Review 11. To better assess court performance and use data to identify potential management challenges, the Director of EOIR should update policies and procedures to ensure the timely and accurate recording of Notices to Appear.
Closed - Implemented
In June 2017, we reported on the Department of Justice Executive Office for Immigration Review's (EOIR) management of the immigration court system, including on the extent to which EOIR had reliable data to assess its performance on case completion times. We found that EOIR did not have guidance or data integrity efforts to ensure the timely and accurate recording of Notices to Appear-charging documents ordering individuals to appear before an immigration judge-which it uses to calculate case completion times. We recommended EOIR update policies and procedures to ensure the timely and accurate recording of Notices to Appear. In January 2020, EOIR issued a policy memorandum that included timeframes within which courts are to input Notices to Appear. In addition, in December 2020 and January 2021, EOIR provided documentation of electronic controls and additional guidance to staff to ensure the accurate recording of Notices to Appear. These actions should provide EOIR greater assurance that its case management data are accurate and allow EOIR to provide more accurate information to external stakeholders, including Congress and the public. Therefore, this recommendation is closed as implemented.

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