By Emma Winger, Immigration Impact
Immigration courts will soon take a big step into the digital age. On February 11, 2022, immigration attorneys, accredited representatives, and Department of Homeland Security (DHS) lawyers, will be required to electronically file immigration court paperwork in new immigration cases.
This update won’t make the immigration court system fully paperless. Notably, there is still no mechanism for unrepresented people to file electronically. But mandatory electronic filing will provide necessary efficiencies for those who appear in immigration court and for the struggling court system itself.
In the summer of 2018, the Executive Office for Immigration Review (EOIR)—the government agency that houses the immigration courts and the Board of Immigration Appeals (BIA)—launched an electronic filing pilot program at the San Diego immigration court.
Called the EOIR Courts & Appeals System (ECAS), the program has expanded beyond San Diego in the last four years. Now, electronic filing is available in all 66 immigration courts and at the BIA. Electronic filing has long been available in the federal court system.
Under a new rule effective February 11, EOIR will require all attorneys and BIA-accredited representatives to file court submissions electronically for all cases that have an electronic record of proceeding. In practice, this means ECAS will be used for all new cases, but many existing cases will remain paper, as EOIR slowly converts cases to ECAS. With a backlog of over 1.5 million cases, it is unlikely that EOIR will become fully digital anytime soon.
There are many advantages to electronic filing. Practitioners will be able to file large, time-sensitive records without the expense of printing and mailing documents. This is particularly true for attorneys who practice in remote immigration courts, where in-person filing is impractical.
People in deportation proceedings who have legal representation will benefit from timely access to important court filings. Delays in paper service can mean their attorney has less time to prepare and respond for their case.
And the immigration court system, currently struggling under a huge backlog, can more efficiently process new cases, gather necessary records to evaluate each case, and transfer cases to new immigration courts as necessary.
But there are many gaps in ECAS. Most importantly, people in deportation proceedings who do not have a lawyer cannot currently participate in electronic filing. There is no right to appointed counsel in deportation proceedings. 55% of people in deportation proceedings do not have a lawyer, as of December 2021. The numbers are even worse for people in detention—80% do not have representation.
As EOIR works to expand ECAS, it will be essential that it is accessible to all unrepresented people, including people in detention. It should be easy to register and available in many languages. EOIR will need to find an efficient way to transfer existing paper files to ECAS without unnecessarily burdening attorneys. EOIR should do away with the requirement that attorneys appear in person to register for ECAS.
But EOIR should also be applauded for taking a necessary step toward a more efficient, digital immigration court system.