In the United States’ overextended immigration courts, waiting is the norm.
Constant delays leave defendants with anxiety and uncertainty, as they wait for court proceedings to wrap up. That is the case for an asylum-seeker represented by San Francisco-based Pangea Legal Services. Niloufar Khonsari, an immigration attorney and co-executive director of Pangea, said the nonprofit’s client was arrested by U.S. Immigration and Customs Enforcement almost a year ago, separated from her two-month-old baby and has been in custody ever since, even after a judge recently granted her asylum.
That’s because attorneys for the Department of Homeland Security appealed the judge’s decision, a practice Khonsari said is becoming increasingly common. Asylum-seekers who are in custody when they are granted asylum remain in detention if their cases slide into the appeals process.
“That’s a prolonged case that really should have been closed, and this mother should have been released from immigration detention with her asylum status,” Khonsari said.
As immigration courts face a record-breaking backlog of cases, defendants can wait years for their day in court, with hearing dates scheduled well into 2022 and 2023 at some courts. According to data from the Executive Office for Immigration Review, the justice department arm that runs immigration courts, the system reached about 877,000 pending cases this year, up from about 521,000 cases in 2016.
The wait time for cases to be resolved means some immigrants could spend months or years in custody leading up to hearing dates. Immigrants released on bond or returned to Mexico sometimes wait even longer for their cases to be resolved, as the courts prioritize cases for detained migrants.
In some courts, immigration attorneys said lawyers for DHS have taken a more aggressive approach to cases and are more likely to appeal when judges don’t rule in their favor, but they face a staggering workload and at times come to court unprepared. Meanwhile, immigration judges face incredible stress and low morale, a recipe for high turnover.
The backlog isn’t a new problem and has been growing for the last decade. But the number of pending cases has piled up rapidly under the Trump administration due to a mix of factors, including the arrival of an unprecedented number of families fleeing violence in Central America. Immigration judges and attorneys argue that the Trump administration’s policies played a significant role in exacerbating the backlog.
In response to an interview request, a spokesperson for the Executive Office for Immigration Review said by email: “Regarding efforts to address our workload, EOIR continues to make great progress in restoring its reputation as a fully functioning efficient, and impartial administrative court system capable of rendering timely decisions consistent with due process.”
Immigration cases grow more complicated as court’s time to hear them shrinks
Immigration attorneys told Big If True it’s common for hearings to be canceled at the last minute, then rescheduled for dates that are months or years away. And even when hearings occur as scheduled, they can feel rushed and may not fit into their allotted time on a cramped docket.
Khonsari said the San Francisco immigration court, which has the third-highest backlog in the country, sliced its previous three-hour time slot for hearings into one or two hours.
“That means we’re not able to finish our cases on the dates that we’re scheduled,” Khonsari said. “So, then it gets kicked out another couple of years or another several months, and people who really want closure, have strong cases and are anticipating winning are in limbo.”
At the same time, it’s unlikely some hearings will be wrapped up, even with multiple time slots, Khonsari said, because DHS attorneys have begun going on “fishing expeditions” that require extra time in court.
“In the past, many DHS attorneys would narrow the issues and actually finish up cases in less amount of time, but … DHS is fighting every case – even the most straightforward cases, even the most sympathetic facts,” Khonsari said. “They’re being instructed to find flaws, find errors, find things that just don’t exist.”
Delays plague court proceedings from the beginning of cases. Kelli Stump, an Oklahoma City immigration attorney and secretary of the American Immigration Lawyers Association, said bond hearings for her clients who are in custody generally happen 30 to 60 days after requesting them.
A recent court ruling requires immigration courts to hold bond hearings for asylum-seekers within seven days of them being requested. For Stump, who has an asylum-seeking client who is scheduled to see a judge on a date that will follow four months in detention, the idea that the court will meet the seven-day requirement is “laughable.”
“I don’t know how they’re going to do it,” she said.
As judges prioritize the cases of defendants who are in custody while court proceedings to play out, immigration attorneys said cases for defendants who are out on bond are bumped from the docket again and again in a cycle that drags on for years.
Kari Hong, an assistant professor at Boston College Law School who runs a pro bono clinic that provides representation to immigrants, said a Colorado court canceled a hearing for her asylum-seeking client two weeks before it was scheduled in June to accommodate a more urgent case. Her client has already waited two years for a hearing, she said, and it’s not clear when the case will be decided.
“There’s uncertainty,” Hong said. “There’s frustration. For the litigants, that’s the issue, and then for the judges, I really feel for them, because they’re overwhelmed.”
As years pass, a defendant’s situation can change, which can impact the strength of their case. For instance, Stump said one of her clients is eligible for a green card through a policy that applies to immigrants who meet certain requirements and whose deportation would cause extreme hardship to a U.S. citizen or permanent resident, such as a child, parent or spouse.
Her client’s case, first filed in 2015, involves the parent of a child with a rare immune disorder, who is eligible for a green card under the policy. Stump is concerned her client will lose eligibility if their case isn’t heard before the child turns 21 and becomes an adult in the eyes of the court system.
Almost half of last year’s new immigration cases involve asylum-seekers. One idea pushed by the Migration Policy Institute is to create a separate process for asylum claims, which an asylum officer from the U.S. Citizenship and Immigration Services would preside over.
“This way it would, first of all, not add them into the backlog,” said Jessica Bolter, an associate policy analyst for the Migration Policy Institute. “It would allow them to have their hearings in a less adversarial setting, where possibly more relevant information about their case can be elicited, and hopefully it would also … allow these cases to be resolved much faster.”
How the Trump administration’s policies impacted the backlog
Despite efforts to whittle away at the backlog, including putting more judges on the job, the cases continue to mount.
Under the Obama administration, the government limited its enforcement efforts to immigrants with a criminal history. Delivering on anti-immigration campaign promises, the Trump administration abandoned that approach in favor of a philosophy that anyone who is in the United States illegally is eligible for deportation. As his presidency began, Trump signed an executive order calling for agencies connected to immigration to loosen their enforcement priorities, and an expanded approach to enforcement meant more cases would run through the beleaguered court.
At the same time, an unprecedented number of families from Central America’s Northern Triangle have stacked cases onto already-plump court dockets.
In the fall of 2017, the Department of Justice approved a plan to reduce the immigration court’s backlog, but the caseload continued to grow. The Department of Justice axed the use of administrative closure, a practice that allowed judges to prioritize certain cases, while suspending or closing others. Instead of helping the backlog, this move caused thousands of cases that were previously considered low-priority to be reopened and added to judges’ dockets.
“As a result, these cases where no one has a criminal record, they have citizen children, they’ve been here for many years, they’ve been paying taxes – All of the sudden those are the people on the docket,” Hong said. “It’s this crazy situation where it just makes no sense.”
Last year, the Department of Justice gave judges a quota of 700 completed cases per year and tied their completion rates to performance reviews. Previously, immigration judges had completed an average of 495 cases per year.
“It’s a constant shuffling and just this pressure to try to do more cases faster, which often times backfires,” said Ashley Tabaddor, president of the National Association of Immigration Judges. “Because then the cases are not done correctly, or it increases the likelihood of error and the cases coming back.”
Resolving cases with limited resources
Immigration judges and attorneys argue the courts lack the resources to ensure cases run through the system smoothly – things like an adequate number of clerks and interpreters. Tabaddor said during some sessions, the courts have limited access to an interpreter or have no interpreter at all, despite the fact that the majority of defendants don’t speak English. She said it’s not unusual for judges to reschedule court proceedings when no interpreter is on hand, which contributes to the backlog.
One alternative is using a telephonic interpreter, a service has its own wait times and lacks the quality of in-person interpretation.
“It’s either a waste of time or it ends up compromising the ability of the judge to effectively communicate with the respondent, so it really throws a monkey wrench in the judge’s ability to effectively manage his or her docket,” Tabaddor said.
Last week, some immigration courts stopped providing interpreters to certain courts for initial hearings that transitioned to a Spanish-only video to explain to defendants their rights in court.
“There’s no question that will slow court proceedings down, because if an immigrant watches this video and then has questions for the judge, there’s not going to be any way for them to communicate,” Bolter said.
Tabaddor said that immigration judges are experiencing unprecedented levels of stress and low morale, with a spike of judges signing off as soon as they’re eligible for retirement and a spate of new judges quitting and returning to their previous jobs.
“This is something I’ve never seen in prior administrations, for new judges to quit,” Tabaddor said. “Just in the last six months, at least six judges that I know of have quit and gone back to their old jobs because of the pressures of this job, … and that’s something that’s completely unprecedented.”
Contact Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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