With a greater number of cases awaiting adjudication than ever before, there is a due process crisis in U.S. immigration courts. While challenges within the system have been growing for years, recent systemic changes implemented after the arrival of record numbers of Central American children last year have only exacerbated existing problems. It is unclear how or when a viable long-term solution will be implemented.
U.S. immigration courts are actually administrative tribunals housed within the federal Department of Justice’s Executive Office for Immigration Review (EOIR). There are currently around 230 immigration judges presiding over cases in 58 immigration courts scattered around the country. The number of cases pending in these courts over the past decade and a half has steadily increased, from around 130,000 in 1998 to a record high of 441,939 as of March 2015, and shows no sign of slowing down anytime soon. That means that each immigration judge could be responsible for an average caseload of 1,921 cases at any given moment. By comparison, federal district court judges usually handle between 500 and 600 cases per year.
The dramatic increase in the total number of cases pending before the immigration courts is a result of the remarkable increase in funding allocated to the enforcement components of the Department of Homeland Security, particularly Immigration and Customs and Enforcement (ICE) and Customs and Border Protection (CBP). Lawmakers have continued to stress the importance of “securing our borders” and cracking down on illegal immigration, resulting in ever larger numbers of individuals being put into removal proceedings before the immigration judges. However, as the amount of money poured into immigration enforcement has skyrocketed, EOIR has not received comparable investment and resources. Indeed, according to a report by the Migration Policy Institute, funding for immigration enforcement agencies increased 300 percent between 2002 and 2013 (from $4.5 billion to $18 billion), while funding for immigration adjudications increased just 70 percent (from $175 million to $304 million).
Funneling more and more cases into a system without adequate resources created a bottleneck and resulted in greater backlogs throughout EOIR as individuals caught in enforcement actions await adjudication of their cases in court. The average case currently pending in the immigration court system has been pending for 600 days or more, with the waits in some of the busier courts being much higher. Those non-citizens eventually determined to be eligible for relief and granted legal status in court to enable them to remain in the U.S. legally often have to wait 1,000 days or more for that decision to be made.
This is not a new phenomenon. As Immigration Judge Dana Leigh Marks, president of the National Association of Immigration Judges, has said, “[w]e have been operating in crisis mode for years.” This has contributed to reports listing the job of immigration judge as one of the worst, most stressful positions within the entire federal government, leading some judges to consider early retirement, which only makes the problem worse as it takes time to fill yet more vacancies. Retired judges have written articles and books describing their frustrations with the existing system and Congress’s apparent lack of will to fix it. The comprehensive immigration reform bill passed by the Senate in 2013 would have nearly doubled the total number of immigration judges in the country over the span of three years, but the bill died in the House.
To make matters worse, the Obama administration’s response to the surge in unaccompanied children fleeing Central America and crossing the southern U.S. border last year has only exacerbated these existing problems. In an attempt to create a deterrent effect and discourage more minors from coming to the U.S., the administration mandated that unaccompanied children’s cases be prioritized ahead of cases already awaiting adjudication. Minors’ cases were to be scheduled for a first hearing within 21 days after the child was apprehended, putting them on a so-called “rocket docket” and forcing judges to have to reschedule and postpone other “non-priority” cases that may have already been pending for months or years. As a result, in the first several months of 2015, immigration judges around the country began rescheduling already pending cases for hearings in November 2019; while these are supposed to just be placeholders until other hearing dates become available, there is no guarantee that these hearings will actually be rescheduled sooner. Accordingly, non-citizens who may have already been waiting for months or years will have to endure several more years of uncertainty before finally being allowed to present their cases to a judge – years during which memories can fade, evidence or witnesses may disappear, and individuals are forced to remain in legal limbo. For those who do qualify for relief, the additional time spent waiting for a hearing only serves to postpone family reunification or the path to U.S. citizenship. At the same time, those who ultimately are found ineligible for relief and are ordered deported will have spent several more years developing ties with this country and building lives and families here, making it even more difficult to have to leave.
In the meantime, there is no evidence that giving unaccompanied minors’ cases top priority is having the desired deterrent effect. Instead, fast-tracking these cases is causing even further problems. In the rush to schedule children’s hearing as quickly as possible, many advocates have reported problems with the court’s system for notifying children of when and where their hearings will be held – children are sometimes scheduled to appear before the court closest to where they were initially detained, rather than the home they were released to, and others have not received hearing notices until the day of or even after the scheduled hearing. Because current law provides that an individual who does not appear in court for a scheduled hearing can be ordered removed in absentia, thousands of children have already received removal orders, perhaps without even knowing they were supposed to be in court. And even those who do receive their hearing notices still have far less time to find an attorney to represent them, stretching already overburdened low-cost legal service providers’ capacities to the breaking point. Thus, many unaccompanied children, some of the most vulnerable participants in our immigration system and arguably those most in need of legal representation, are being ordered deported while thousands of other non-immigrants (including many with attorneys) have their hearings rescheduled for 2019.
Clearly, something needs to be done, and there have been some efforts to ameliorate this grim situation. Last summer, the administration issued an expedited regulation allowing EOIR to appoint temporary immigration judges to renewable six-month terms. These temporary judges, intended to cover the gaps left by judges assigned to new cases at the border, were to be selected from former immigration judges, administrative law judges from other federal agencies, or lawyers with at least ten years of experience in immigration law. But this is not a long-term solution. Additionally, Chief Immigration Judge Brian O’Leary issued a memorandum earlier this month, encouraging immigration judges to question ICE attorneys on the record and as early as possible about whether they intend to exercise prosecutorial discretion in a given case, in accordance with DHS priorities announced last November, so that limited court resources may be reserved “to resolve actual cases in dispute.” Others have called for the entire system to be revamped and for the adjudication of removal proceedings to be moved to an independent court system, rather than housed within the Department of Justice. But given Congress’s apparent unwillingness to allocate sufficient resources to EOIR, systemic change seems unlikely.
The Supreme Court has long held that the Constitution’s guarantees to due process of law apply to individuals in immigration court proceedings, even those “alleged to be illegally here.” Non-citizens in removal proceedings have the right to be heard before being deprived of “life, liberty, or property,” including before being deported from the United States. But are these rights being meaningfully fulfilled when individuals must wait years before being allowed to present their cases? Until Congress realizes that immigration reform entails more than increasing already record-high levels of immigration enforcement, those seeking due process and justice under our current system may have a long wait ahead of them.