U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.
The sharply increasing number of migrants arriving at the border, including more than 170,000 in March alone, is the highest level since 2006, according to preliminary enforcement data from the U.S. Customs and Border Protection (CBP).
Only minors arriving without their parents are allowed to remain in the U.S., along with some parents with children below the age of seven. Even so, the added caseload for already overburdened immigration courts could be staggering if elevated levels of border crossings continue.
This is not the first time the United States has seen huge numbers of migrants at its southern border. It’s also not the first time immigration judges, who rule on whether asylum petitions are granted or rejected, have seen caseloads multiply.
“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.
“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.
The Transactional Records Access Clearinghouse (TRAC), a research center at Syracuse University, shows the backlog of immigration cases more than doubled since the beginning of 2017.
According to TRAC, at the end of February 2021, there were 1,299,239 active cases pending before the court, up from 542,411 at the beginning of 2017. As of March 31, the United States had 529 immigration judges in 67 courts nationwide.
Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”
A different system
U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).
In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.
“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”
A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”
Judges to the border
Under former President Donald Trump, additional immigration judges were hired. Even so, the backlog of cases grew markedly during Trump’s time in office.
Meanwhile, the Trump administration, like the Obama administration that preceded it, dispatched immigration judges to courts near the U.S.-Mexico border, Marks noted.
“The prioritization of sending judges to border courts ended up leaving our interior courts underutilized and not able to process the cases that had been pending in the system for long periods of time,” she said.
Adding to the congestion was a 2018 directive by then-Attorney General Jeff Sessions to reopen hundreds of thousands of immigration cases the courts had previously closed and rein in judges’ discretion to close future cases.
Court staffing and independence
U.S. lawmakers of both parties have long argued in favor of expanding immigration courts to reduce the case backlog. Meanwhile, immigration judges, backed by dozens of immigrant and human rights advocacy groups, are asking Congress to pass legislation making the immigration court system an independent entity insulated from the immigration agenda of any given administration.
“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.
Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.
“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.
“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.
While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.