The nation’s chronically overburdened immigration courts are becoming even more crowded as a wave of undocumented immigrants enters the system and fewer are able to exit it.
The 334 immigration judges working nationwide each juggle dockets of some 2,000 cases. The backlog has reached nearly 700,000, more than double what it was six years ago, and the average case is in court for more than two years.
This frustrates people on both sides of the immigration debate. Court hearings are scheduled for months or years into the future, delaying deportations for those who have no right to stay and putting off permission to remain for those who do.
The Trump administration has campaigned to increase arrests and deportations of undocumented immigrants. The number of pending cases has increased by more than 150,000—a 25% jump—since Donald Trump took office. The monthly increases during the Trump administration exceed all but the last two months of the Obama administration.
“The winner is an alien who has a really lousy case, because they get to be here for years waiting for a case to come up,” says Judge Lawrence Burman, of Arlington, Va. His calendar is full through 2020, and he has scheduled hearings on the docket of a future judge who has not yet been hired. Immigration judges aren’t permitted to speak to the media; Mr. Burman spoke in his capacity as an official with the union representing immigration judges.
Devin O’Malley, a spokesman for the Justice Department, said more cases are being completed since Mr. Trump took office, and he blamed the Obama administration for the court’s troubles.
“Undoing years of neglect takes time,” he said in a written statement, expressing confidence that the Justice Department “will ultimately create an immigration court system that serves the national interest and introduces speed and efficiency without compromising due process.”
Visits to several immigration courts turned up similar scenarios: Cases are called, and when an immigrant needs time to find a lawyer, or produce the right paperwork, or hear back from the immigration agency on a pending application, the case is rescheduled.
The way advocates of tougher immigration enforcement see it, the backlog allows people who should be deported to linger in the U.S., and encourages others to come or stay illegally, knowing it could take years for them to be removed.
Mr. Trump and others have cited the case of Apolinar Altamirano, an undocumented immigrant who was arrested by Immigration and Customs Enforcement agents in 2013 but released on bond while his case moved through the immigration courts in Arizona.
While waiting, Mr. Altamirano, then 29 years old, allegedly shot in the head a Mesa, Ariz., convenience-store clerk named Grant Ronnebeck, as the clerk counted money Mr. Altamirano had put down for a pack of cigarettes. The clerk died, and Mr. Altamirano was charged with murder. That was in 2015. The criminal case is pending, and he remains in an Arizona jail.
“Grant Ronnebeck’s murder is a direct result of your agency’s failed policies,” Rep. Paul Gosar (R., Ariz.) told a then-Obama administration official during a 2016 congressional hearing.
Lawyers representing immigrants also decry the long waits. Delays make it difficult to try cases, as evidence grows stale and clients change addresses. It is hard to recruit pro bono lawyers, because they know they may be tied to the case for years. Immigrants likely to win in court are instead stuck in limbo.
A court hearing for a 32-year-old Honduran woman who crossed the Rio Grande in south Texas in 2014 is now scheduled for December 2019.
According to the woman and her lawyer, her parents and brother were murdered in Honduras by attackers trying to force them from their land, and her husband was attacked. She is now seeking asylum in the U.S. Her pro bono lawyer, Samad Pardesi, says he plans to argue that as a member of this family, she faces persecution if sent back to Honduras.
“The police couldn’t protect my brother. They couldn’t protect my parents,” the woman said in an interview.
Her hearing, originally scheduled for the fall of 2016, has been postponed three times. When a new judge was hired for the court, the case was reassigned, pushing back the date. The new judge bumped her date, twice, so she could hear the case of someone in detention, a higher priority, according to her lawyer.
During the final years of Barack Obama’s presidency, ICE targeted for arrest a narrow category of undocumented immigrants—recent border crossers and those convicted of serious crimes. Nearly everyone else was let go on the theory that the government had limited resources and had to set enforcement priorities.
The Trump administration says it targets for arrest all undocumented immigrants charged, convicted or suspected by ICE of any crime, along with anyone previously ordered deported. ICE agents also arrest almost anyone else they find in the U.S. illegally. During the first half of fiscal year 2018, 33% of those arrested by ICE had no criminal convictions, compared with 13% in 2016.
The president has requested funding from Congress for 10,000 more ICE agents in a push to nearly triple the size of the force.
When new cases land in court, government lawyers are less likely to agree to exercise prosecutorial discretion to close them based on the circumstances of the immigrants involved, or to give them time to apply for a status that would let them stay legally. In 2016, under the Obama administration, judges exercised such discretion to close more than 25,000 cases. In 2017, 8,600 people received such treatment. Such closed cases can later be reopened at the request of the government or the immigrant.
“We see almost no prosecutorial discretion any more,” says Barry Frager, an immigration lawyer in Memphis. “We consider those days to be over.”
The Trump administration has also stepped up reopening previously closed cases. An agency official says ICE directed its lawyers to systematically review those cases. During fiscal year 2017, 21,000 previously closed cases were put back on the calendar, a 42% increase from 2016.
That was the case with Hugolino Garcia Matul, a 44-year-old Guatemala native, who came to the U.S. illegally in 1997 and works in a turkey-processing plant in rural Missouri. In 2010, he was arrested for driving without a license and, in 2011, put into deportation proceedings. In 2012, the government agreed to administratively close the case because Mr. Garcia had been in the U.S. for many years and hadn’t committed a serious crime, his lawyer says.
Last year, he got a notice from the government that his case would be put back onto the court’s calendar. His case is scheduled for a status hearing in September, and his lawyer expects the merits hearing will be sometime in 2021.
Periodicshifts in court priorities, during both the Obama and Trump administrations, have contributed to the backlog.
Under Mr. Obama, judges were told to move the cases of immigrant families and children to the top of their dockets, which pushed older cases involving single adults to the back of the line.
Mr. Trump scrapped that directive. He transferred about 100 judges to courts near the Mexican border and to some cities with large caseloads. That meant cases at their home courts had to be rescheduled. The redeployment occurred when border crossings were at their lowest levels in at least 45 years, leaving many judges with little to do in their temporary assignments, according to several judges.
A report prepared for the Executive Office of Immigration Review, the agency that runs the immigration courts, by outside consultants concluded that temporarily reassigned court personnel had trouble catching up with their own work after returning to their home courts.
This month, the Justice Department announced it was again temporarily deploying 18 immigration judges to the border.
There is wide support for hiring more immigration judges. In this year’s budget, Congress has authorized 484 judge positions, up from 319 in 2015. Just 334 are currently on the job, partly because of a lengthy hiring process. Unlike most federal judges, immigration judges work for the Justice Department, which runs the immigration-court system.
The Justice Department says it has shortened the hiring time. It also is working to convert the courts’ paper files into an electronic system.
Beyond that, there is little agreement about how to reduce the backlog.
Many critics of the administration’s immigration stance want ICE agents and prosecutors to exercise discretion and not arrest or prosecute undocumented immigrants who are settled in the U.S. and pose no threat to the public.
Continue reading: https://www.wsj.com/articles/u-s-immigration-courts-long-crowded-are-now-overwhelmed-1527089932
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