Immigration courts are overworked and face serious backlogs. Multiple administrations and Congress have sought to mitigate the problem and ease the strain on the immigration court system.[1] One approach to mitigate the problem is the use of rocket dockets.[2] Rocket dockets are a method of expedited schedules to fast-track certain cases to remove them from the judicial docket.[3] The growing immigration court backlog has pushed recent administrations to rely on rocket dockets more heavily than ever before.[4] While this strategy increases efficiency and helps to reduce overwhelming dockets, it also makes it harder for people to obtain effective counsel and threatens due process rights.[5] The expedited system adds additional strain on judges, courts, and attorneys.[6] The growing reliance on rocket dockets reveals a tension between efficiency and justice in the immigration system, without adequate safeguards for due process rights, thereby compromising the integrity of the immigration court system.

One of the main consequences of the two-million-case backlog is a delay in justice. Rocket dockets aim to allow individuals to spend their time in court more efficiently than they would otherwise.[7] They achieve the intended goal of expediting cases and reducing backlogs by providing quick hearings.[8] These quicker hearings result in a large number of pro se cases that are disposed of almost 500 days sooner than those with legal representation.[9] Specifically, cases without representation are disposed of in 183 days, compared to 667 days for cases with legal representation.[10] Many of these expedited cases result in removal orders, often due to failure to appear, which allows cases to be moved off the docket more quickly and permanently.[11] However, this improved efficiency of dockets threatens due process rights and thus the American legal system.

Immigration law is complex and difficult for even seasoned attorneys, and rocket dockets often do not allow individuals time to obtain legal counsel.[12] Having many unrepresented individuals causes issues with confusion and missed dates, deadlines, and other proceedings that can be avoided with proper counsel.[13] Legal counsel helps to prevent undue delay, promote compliance, and avoid unfair proceedings that violate due process rights.[14] Specifically, about 70 percent of those placed on rocket dockets proceed without representation, even though immigrants with counsel are five to ten times more likely to secure relief than those without.[15] This disparity raises serious concerns about the protection of due process for individuals who could have benefited from access to legal counsel.

Although the rocket docket system is intended to minimize detainment time and provide faster access to legal proceedings, it often falls short of that goal. Individuals in detention with representation are four times more likely to be released than those without counsel, suggesting that proper representation not only improves outcomes but also reduces costs associated with prolonged detention.[16] This is especially significant given that 86 percent of detained immigrants lack legal counsel.[17] With better access to representation, detention periods could be substantially reduced, ensuring a more efficient use of government resources and stronger adherence to due process principles.

The due process analysis provided by Matthews v. Eldridge is useful for evaluating rocket dockets.[18] The test of due process is a balancing that weighs the individual’s interest at stake, the government’s interest at stake, the risk of error under the current method, and how much additional procedures will cost.[19] Here, the individual interests are at stake because, without proper representation, immigrants are less likely to obtain adequate relief. The government’s interest is in preserving due process rights and maintaining the integrity of the immigration court system. The government is also spending large portions of funding on detention rather than programs that would help families appear in court. Addressing the problems in immigration cases caused by the rapid pace of rocket dockets could help reduce costs associated with prolonged detention by enabling individuals to obtain counsel and comply with court requirements.

To effectively address the immigration court backlog while also protecting due process, judges should have greater discretion to grant appropriate continuances to individuals seeking representation. Representation helps protect due process rights for all individuals, reduces detention rates, and minimizes inefficiencies caused by confusion and unfamiliarity with the legal system.[20] Allowing additional time would also help mitigate the immense pressure on immigration attorneys who struggle to meet the overwhelming demand for counsel.[21] Greater discretion in granting continuances would relieve attorneys of the extreme stress caused by excessive caseloads and unrealistic deadlines, enabling them to provide the zealous advocacy their clients deserve and thus protect due process rights.[22] This additional time strengthens the fairness and integrity of the justice system.[23] While rocket dockets are effective at clearing cases, they often do so at the expense of due process and the immigration courts’ ability to ensure adequate relief and fair outcomes rather than mass dismissals.

[1] Muzaffar Chishti & Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, MIGRATION POL’Y INST. (Feb. 23, 2022), https://perma.cc/6UX9-E8DE.

[2] Emily R. Summers, Prioritizing Failure: Using the ‘Rocket Docket’ Phenomenon to Describe Adult Detention 102 Iowa L. Rev. 851 (2017).

[3] Katy Murdza, Rushing Immigration Court Cases Through ‘Rocket Dockets’ Deprives Families of Due Process, IMMIGR. IMPACT (Aug. 9, 2019), https://immigrationimpact.com/2019/08/09/immigration-court-rocket-docketsdue-process.

[4] Id.

[5]  Margaret McKeown & Allegra McLeod, The Counsel Conundrum: Effective Representation in Immigration Proceedings, in Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform 286, 290 (Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag eds., 2009).

[6] Andrew P. Levin et al., Secondary Traumatic Stress in Attorneys and Their Administrative Support Staff Working with Trauma-Exposed Clients, 199 J. Nervous & Mental Disease 946 (Dec. 2011).

[7] Ingrid Eagly & Steven Shafer, Access to Counsel in Immigration Court, Special Rep. (Am. Immigr. Council) Sep. 2016, at 3, 6.

[8]  Id.

[9] Id.

[10]Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71 (1970)).

[19] Id.

[20] Eagly & Shafer, supra note 7.

[21] See Levin et al., supra note 6.

[22]  Id.

[23]  See Murdza supra note 3.