Some concerning developments in the last few days require writing this post when we still don’t have all of the details. Apparently the Immigration Courts are implementing a system of “No Dark Courtrooms,” which may mean Immigration Courts operating 24/7.

We are still trying to determine the contours of this program, but it appears to be going into effect in July, with all Immigration Court staff being told to be ready to travel.

The Problem is the Backlog

The problem that needs to be solved is the now-well-known backlog in the Immigration Courts. Right now, there are over 692,000 cases pending in the Immigration Courts nationwide.

There are roughly 60 Immigration Courts nationwide and 350 Immigration Judges. That averages out to about 2000 cases per Immigration Judge, which is a lot.

Because of the backlog, there are courts where trials are being set in 2022.

That means unscrupulous people with no lawful claim to defend against a removal order are able to game the system and buy more time. But people with good cases are left languishing in this system. They’re eligible for lawful status eventually, but they may have to wait 6 or more years to achieve it.

The solution is obvious: close some of these cases or hire more judges to adjudicate them. And yet, Attorney General Sessions is now making it near impossible to close cases.  And Congress has no interest in spending more money. So, what’s an agency to do?

Apparently, the Solution is “No Dark Courtrooms”

The first time we heard the phrase “No Dark Courtrooms” was in the November testimony of EOIR director James McHenry. Then it was mentioned in this December, 2017 policy document identifying ways the agency could reduce the current caseload.

The agency has never said what “No Dark Courtrooms” means. Apparently they told the Washington Post that this will involving hiring “retired judges to fill those courts,” which could mean various things.

Recent FOIA Requests

Since EOIR has never said what “No Dark Courtrooms” means, in March we filed a FOIA request asking for the policy documents and e-mails explaining it.

In response the EOIR says there’s no such “policy.” But what we can glean from their e-mails it appears the strategy is to fill the courtrooms that are currently closed when Immigration Judges have days off. First, Immigration Judges often get a few days a month off.

That big black box appears to be a discussion of what the policy will entail. They’ve redacted it, and we’ve appealed. But the general idea seems to be that when those judges can’t be in their courtrooms hearing cases, other judges will hear cases in those courtrooms via video conferencing.

We can tell through FOIA responses that they’re having meetings about the “policy.” 

But they haven’t shared the details (yet). We have filed an appeal to try to obtain the actual policy documents and details of what this policy might entail, which is still pending. We will file a lawsuit if they’re not produced.

The May 30, 2018 Memorandum – All Hands on Deck

On its face the policy doesn’t seem that unreasonable. As long as they give immigrants adequate notice, many of us would prefer to have their hearings sped up.

The problem is that the agency is holding a hand full of cards and won’t show them.

Then came this memo on May 30, 2018 to ALL Immigration Court personnel, essentially saying “be ready to travel to the border so we can fill courts with judges and have hearings non-stop.”

This was originally shared on Twitter by Aura Bogado of Reveal News.

Remember, the plan was supposedly to hire more judges and then implement “No Dark Courtrooms.” But apparently they’re going forward with it by using judges assigned to other courts, rather than hire more judges.

So What Does This Mean?

According to the memo, this onslaught is supposed to start on July 7, roughly a month from now.

But staff aren’t even asked to provide their availability until June 11. Which means hearings will be scheduled and notices will be mailed to immigrants when? Mid-June? Later? This means people are likely to get weeks (or less) of notice that their hearing is set to occur in one of these border courts.

For detained individuals, the speed is welcome. But for people who have to take time off work, hire child care, work with their attorneys to prepare, marshal witnesses and evidence, and get themselves ready, it isn’t likely going to be enough time.

There are also a host of question we still don’t know the answers to:

  1. Will they move cases from other courts to these border courts?
  2. Will they be conducting hearings at night or on the weekends? Does this really mean “No Dark Courtrooms”?
  3. How much notice will people receive that their hearing has been scheduled?
  4. Will the union that represents the Immigration Judges object to this last-minute mobilization?

Usually the Department of Justice would give the Immigration bar fair warning before this kind of change. But this is a new era, and much of what we know about what is happening behind the scenes we have to learn through Freedom of Information Act requests. At this time there’s no reason to panic, but something strange is definitely afoot.