July 19, 2017

The Causes of our Immigration Court Backlog, and How We Can Fix It



The number of cases pending in the immigration court system is currently at an all-time high. Immigration judges struggle to get through their overburdened dockets each year, leading to lengthy wait times—in most cases, years—for those awaiting a decision. Rather than working to solve the problems, the Trump administration has exacerbated them.

According to the Transactional Records Access Clearinghouse (TRAC), there were nearly 600,000 immigration cases pending at the end of last May. While the case backlog used to be “manageable”—staying under 200,000—it crossed that threshold during President Obama’s first term and has risen quickly since.

By expanding enforcement priorities without a corresponding expansion of court personnel, President Trump’s policies are making that backlog worse. As a result, immigration-related arrests have skyrocketed, increasing by 38 percent this year, but adjudication rates have remained the same.

The overflowing dockets of immigration judges have led to nightmarish scheduling delays. Currently, according to TRAC, the average wait time for a Master Calendar hearing—a preliminary hearing meant to provide a chance to plead and schedule an actual merits hearing—is nine months. After that, many wait upwards of 670 days to have their case heard. Some wait four to five years.

The huge backlog of cases is harming immigrants who are stuck in limbo as they wait to learn their fate. It can ruin their chances of receiving pro bono representation, which is usually necessary to win a case. Worse still, asylum seekers have seen their backlog more than quadruple in the last five years. In the years they wait for a decision on their case, witnesses disappear and evidence becomes outdated, drastically reducing their chance of making a successful claim. Meanwhile, family members may be stuck in their dangerous home countries, waiting for the asylum case to be resolved to escape.

Additionally, the existing backlog poses a potential threat to our public safety and national security, while also creating negative economic effects. The delays allow immigrants picked up for criminal convictions or charges to roam free in the United States for years afterward without much in the way of supervision. Further, while these individuals wait for their hearings, they often can’t work and have to rely on benefits—especially true for asylees. It is therefore in our interest to reduce the delays and get these cases through quickly.

While the number of cases has increased, the main cause of the backlog is the failure to hire enough immigration judges to deal with the influx. There are currently only 58 immigration courts throughout the country, situated in 27 states, Guam, and Puerto Rico. There are just 300 sitting immigration judges, 39 percent of whom are currently eligible to retire.

Attorney General Sessions has plans to hire 50 new judges this year, and 75 next year, in order to deal with the caseload. However, this modest increase in judges will not be enough to cover the new influx of cases, much less tackle the existing backlog. According to a report by Human Rights First, the system needs over 500 judges completing at least 500 cases each year until 2023 in order to end the backlog. Since it currently takes close to two years to hire an immigration judge, it is unlikely that this backlog will be dealt with anytime soon.

Solutions

There are a few things the Trump administration could do to reduce the backlog and improve the immigration court system.

First, the administration should focus its resources on increasing the number of immigration judges. This would not only reduce the backlog, but also help alleviate the pressure on the existing judges, and allow them to focus more on individual cases rather than speeding through them.

Second, the administration should ensure that Immigration and Customs Enforcement (ICE) is prioritizing criminals and dangerous undocumented immigrants rather than targeting all undocumented individuals. By focusing enforcement resources on removing only those who commit crimes and pose a real danger to society, the administration would not only further its goal of making our country safer, it would also reduce the backlog.

Third, as the American Bar Association and the President of the National Association of Immigration Judges, the Hon. Dana Leigh Marks, suggested, it could be beneficial if Congress were to remove the immigration court system from under the Department of Justice and allow it to be its own system, like the current system of bankruptcy courts.

This idea was first introduced in 1981 by the Select Commission on Immigration and Refugee Policy. The new system would still handle immigration issues, but the judges would have more control over the system and their own dockets. It would also allow for the creation of both a trial and appellate division to better resolve any errors made during cases, as well as provide national, binding caselaw. Additionally, separating them from the Department of Justice would reduce much of the politicization entrenched within the system.

Many of President Trump’s current immigration policies serve only to further strain an already overburdened system. By increasing the number of immigration judges and enforcing removal priorities, the backlog could be alleviated, hundreds of thousands of immigrants could be saved from years of waiting, and we could get dangerous criminals off of the streets. The administration should craft its policies to solve the real problems at hand rather than making them worse.