Influx From Central America Pushes Immigration Courts to Brink

October 28, 2016 5:32 pm Last Updated: December 16, 2016 7:28 pm

NEW YORK—It is in a windowless room on the 14th floor of a federal building in downtown Manhattan that many hopeful immigrants learn their fate.

Around 10 a.m., a slight, soft-spoken woman in a black robe started reciting a phrase she’d repeat perhaps 25 times that day: “This is Immigration Judge Mimi Tsankov. I am at the Immigration Court in New York. Today’s date is October 20, 2016. These are the removal proceedings in case number …”

Her polite voice, like a recorded message on a customer service line, carried no sign of frustration or resignation—though both would be understandable.

On her docket is an endless line of hopeful immigrants who are waiting for her to decide whether they will be deported or allowed to live legally in the United States. Most wait for years, in a constant state of uncertainty. Knowing all that, the placidity of the proceedings creates an atmosphere of hopelessness.

“You haven’t seen anything,” said Robert Findaro, an attorney with the Central American Refugee Center. He is currently handling the cases of about 40 children from the region.

The court process is very civil, he said, but “really heart wrenching.”

Overwhelmed

The Justice Department is hiring more judges, but with unabated violence in countries like El Salvador, Guatemala, and Honduras driving people out, the rising influx into the United States is still overwhelming. And the United States has a legal obligation to accept the thousands of migrant hopefuls until their asylum claims are processed.

“We’re teetering on the edge,” said Judge Dana Leigh Marks, president of the National Association of Immigration Judges.

Collapse of the courts may not mean they stop working altogether. But if the caseload keeps increasing, they will grind to almost a standstill. Gradually it would be able to solve so few cases, the country would technically lose the ability to grant legal status to the eligible and, in many cases, to order deportations. Hundreds of thousands of people, from small children to violent criminals, would be stuck in limbo between legal and illegal status. And the number could grow by hundreds of thousands a year.

They Keep Coming

The term “unaccompanied minor” pierced the immigration debate in 2014, as thousands upon thousands of lone children crossed the Rio Grande into Texas and overwhelmed border services.

And as quickly as the problem grew, it diminished the year after. The Mexican government started to intercept migrants and the number reaching the United States dropped dramatically—by more than 40 percent in the 2015 fiscal year (ending Sept. 30).

But it shot up again. Border Patrol apprehended more children and families during fiscal year 2016 than in the same period in 2014.

 

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“This is no longer a temporary flow,” said Sarah Pierce, analyst and expert on unaccompanied child migrants with the Migration Policy Institute, a Washington-based think tank.

“[In] 2014 we all assumed this is a big surge that we’re just having, then it would be over,” she said.

“The United States really needs to start concentrating on long-term solutions to this issue. The immigration court system clearly cannot handle this.”

The last year the courts were able to decrease their backlog was 2006.

Since then, the backlog has more than tripled—from about 170,000 to more than 516,000 cases, according to data cruncher Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

“The situation just got ridiculous from there [2014],” Pierce said. “People are being assigned hearings as late as 2023.”

On average, people now wait 672 days (almost two years) to see an immigration judge.

The only solution is to add more judges, Pierce said. But that’s easier said than done.

Swamped

In 2007 the Justice Department employed over 200 immigration judges. They were able to complete over 270,000 cases that year.

In 2015 the department had some 240 judges. But they completed fewer than 200,000 cases.

“We are working harder but are able to bring less cases to a final resolution,” said Judge Leigh Marks in an email.

Marks identifies three reasons for the backlog:

  1. More cases require more demanding management. People are requesting different court dates, need to change lawyers, and submit other (sometimes complicated) motions that the judge has to review and decide upon. Her docket of some 2,700 cases in San Francisco Immigration Court usually produces about 10 motions a day and as many as 30 on a “really bad day.” And she knows judges with 4,000 cases on their docket.
  2. Judges face increasingly complicated cases. For example, families from Central American countries plagued by gang violence often ask for asylum. But asylum requires the applicant to be in danger of persecution based on race, religion, nationality, political opinion, or membership in a social group. The case files can grow to one-foot- or even two-feet-thick to substantiate such claims, Marks said.
  3. The “rocket docket.” In June 2014, President Barack Obama ordered that some cases  take priority—specifically, those of unaccompanied children and families, and people who had just crossed the border. This was both to quell the humanitarian crisis and to send a signal that those not eligible for legal status would be ordered quickly to return.

“We did not think it would be productive,” Marks said. She was obliged to say none of her remarks can represent the position of the Justice Department.

The priority cases pushed back many others that were close to completion. Instead of finishing the old ones, the judges were ordered to hold hearings for new cases that were nowhere near ready to be ruled on. It can take a year or more for a defense lawyer to prepare a case, Marks said.

And so by Sept. 26 this year, the judges had completed only about 40 percent of the priority cases assigned since 2014. And even among the completed ones, half the people didn’t show up for their hearings and were simply ordered to be removed from the country in absentia. Sometimes people didn’t show because they didn’t have a stable address to receive the notice, Marks said. And less than a third of children and families are able to find a lawyer, according to TRAC. When people show up without a lawyer, immigration courts only provide defense counsel if one happens to be available pro bono.

The Justice Department added more than 50 judges in 2016 and the current number stands at 294. It has another 100 candidates “at various stages of the hiring process,” said Kathryn Mattingly, spokeswoman of the DOJ’s Executive Office for Immigration Review, in an email.

That is an impressive feat considering how hard it is to hire an immigration judge. Aside from high qualification requirements, “the quality of life of an immigration judge is extremely poor,” said Pierce, of the migration institute.

Immigration judges suffer “significant symptoms of secondary traumatic stress” and higher burnout rates than prison wardens, according to a 2009 study funded by the University of California San Francisco Academic Senate.

“They’re really just trying to get through a massive amount of immigration court proceedings in one day,” Pierce said. “And these are very serious cases with massive implications for people who are going through them.”

“It’s not like a TV judge,” Marks said. “It is extremely hard work and very, very emotional when you realize that someone’s fate is in your hands and they are feeling that pressure sitting right there in front of you.”

She believes at least 500 judges are needed to handle the current caseload. The 2017 federal budget, so far, makes appropriations for a total of 399, Mattingly said.