News broke on Sept. 18 that the immigration court backlog now surpasses 1 million cases, nearly doubling in just the past two years.

The immigration courts simply cannot handle the caseload, and hiring more immigration judges alone won’t fix the problem. 

The problem is, immigration judges don’t have the standard judicial tools that all other judges have to manage their dockets. Until they get them, the dockets will be bloated with meritless cases.

As a recent report from the American Bar Association explains, the current system is “irredeemably dysfunctional and on the brink of collapse.”

We’ve written before on this issue (here and here) to examine the scope of the problem, to suggest some commonsense solutions, and to explain why some proposed solutions (more funding and more judges) simply won’t suffice.

So, what’s the solution? 

We have proposed two commonsense fixes that exist everywhere except immigration courts: dismissal for failure to state a claim and judgment on the pleadings.

Before explaining why judges need these tools, and how they work, it’s important to put the problem in perspective. 

There are only about 430 immigration judges in the country who manage more than 1 million cases. By comparison, there are 586 full-time U.S. district judges (along with about 400 semi-retired judges who can maintain as large or small a caseload as they like) who manage about 450,000 federal cases. 

Put another way, the average immigration judge has about 2,300 cases, while the average district court judge (who also benefits from a staff of several law clerks and the support of magistrate judges) has about 450 cases. 

And people complain that federal district court judges are slow.

The immigration courts, by comparison, run like molasses in winter. It typically takes an immigration judge 726 days to issue a final ruling. 

This is bad news for people with meritorious cases, but good news for people who have meritless ones. And there are lots of meritless cases clogging the system.

As we reported in our earlier paper, 68% of removal and deportation cases result in removal orders, and 60% of asylum petitions are denied.

But immigration judges have no power to eliminate meritless cases early on in the process. They have no choice but to hear facially meritless cases from beginning to end.

Federal district court judges, by contrast, are able to weed out 82% of cases before they go to trial. 

That’s good for both the courts and the litigants, so we should give immigration judges the same tools that federal and state courts have—namely, the ability to dismiss or enter early judgment in meritless cases.

Every state and federal trial judge can dismiss claims that are legally baseless or poorly pleaded. In federal court, motions to dismiss baseless claims are commonly called “12(b)(6) motions” after the Federal Rule of Civil Procedure that authorizes them.

That rule allows a judge to look at a pleading, assume all the facts it alleges are true, and then determine whether those facts, if proven, would support the relief sought. If they wouldn’t, the judge kicks the case out.

Similarly, every federal court and all but three of the states’ courts have the ability to enter judgment on the pleadings. Similar to 12(b)(6) motions, a motion for judgment on the pleadings lets a judge enter judgment without fact discovery or trial when the facts are not in dispute. That saves a tremendous amount of time.

Immigration judges cannot do either of these things. No wonder they have such an enormous backlog.

To fix this problem, the Justice Department should promulgate regulations that give immigration judges these commonsense tools. (We show what those regulations might look like here.)

The immigration courts are crumbling under the weight of more than 1 million cases. We need to give them these tools now, before they collapse entirely.