Judges Will Soon Retire and Immigration Cases Have Doubled. Are the Courts About to Collapse?

February 23, 2015 Updated: October 8, 2018

Immigration courts are smothered by work, but one may not find that particularly new or surprising. In fact the news has been around so long, one may find it rather mundane.

Yet the problem is getting worse and the moment may be close when the system finally snaps.

And that’s a big deal. Deportations? Asylums? Unaccompanied children? Forget it. The whole immigration enforcement would be paralyzed.

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

At that time, about 230 judges carried a backlog of some 200,000 cases.

Fast forward six years.

Today some 230 judges face a backlog of over 430,000 cases.

The time it takes to complete a case increased from 430 days in 2009 to almost 600 days in 2015, according to data cruncher Transactional Records Access Clearinghouse at Syracuse University.

And the situation may get critical very fast, as almost half of the judges are eligible for retirement this year, according to Judge Dana Leigh Marks, president of the National Association of Immigration Judges (NAIJ).

“We have definitely heard from many of our colleagues that the deterioration in working conditions and increased pressures have made them choose to retire at their earliest possible opportunity, a change from their plans before things got this bad,” stated Leigh Marks in an email response.

“The number of immigration judges in the country needs to be probably tripled, at least doubled.”she said.

The Senate has tried to double up in 2013 but the House stopped the bill. The Justice Department requested 55 more judges for the next year but with Congress still stuck along its party lines it is unclear if Leigh Marks’s plea will be heard.

Way Out

Though resources are sorely lacking, Leigh Marks has led the NAIJ in trying for years to present a cheaper alternative—restructuring of the system so judges could move the cases faster.

But it would require a massive change.

At present, immigration judges are not actual judges. They are considered attorneys hired by the Justice Department.

That puts the judges in a precarious position. Technically, their client is the Department of Justice (DOJ) and their impartiality goes only as far as the department’s regulations allow it to go. Simply, the courts are a part of the law enforcement, not judiciary.

The DOJ asks the judges to be impartial, but their offices are sometimes right across the hall from the Department of Homeland Security (DHS) prosecutors. Sometimes the court even shares a building with the detention center where the illegal immigrants are held.

Moreover, their clients are not entitled to legal representation if they can’t afford it.

And perhaps most importantly, immigration judges cannot charge the DHS prosecutors with being in contempt of court.

This, seemingly a technicality, is a blow to effectiveness of the courts, according to NAIJ’s 2012 paper.

Charging lawyers with contempt of court is an important way for judges to maintain discipline. If a lawyer hinders the proceedings, even, for example, by coming unprepared, the judge may issue a warning, even a fine.

But since immigration judges can only charge the defense lawyers, some choose to not use the charge at all to prevent an appearance of bias, according to NAIJ.

As a last nail in the coffin, the courts are at the mercy of any DOJ administrative action, like last year when the department ordered the cases of unaccompanied children crossing the border to get priority.

Thousands of cases that may have been just weeks from closing were pushed months, or even a year back. Leigh Marks protested, arguing judges are the ones to make such a call. But under the current arrangement immigration judges just don’t have the power.

The results of this strange relationship under the DOJ are disheartening.

“Many Immigration Judges are too passive in their courtrooms, and both immigrants and due process suffer,” stated a 2012 report by the Appleseed, a network of public interest justice centers.

New Court

Leigh Marks suggests the immigration courts should be moved out of the DOJ and made into a separate system under the judicial branch of the government.

The judges would have more power to move the cases, morale would improve, and credibility of the system as well.

But Congress hasn’t shown interest in this solution for decades, mainly because it would cost money, Leigh Marks said.

Restructuring the system would cost money. Also, the judges would probably be paid 20-60 percent more to level they’re salaries with other federal judges. The government would have to provide attorneys to poor defendants.

Leigh Marks is not sure what the price tag would be, but said NAIJ plans to order a study on it. She’s confident though the move would save money in the end. After all, it costs over $150 for every day an illegal immigrant is detained waiting for the result of his or her case.

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