As the President gets ready to sign a new immigration executive order today (see our note here: “Trump To Sign New Executive Order On Travel Bans Today: Will Exclude Iraq, Green Card Holders“), a group of overly burdened federal immigration judges are wondering whether they’ll get additional support to tackle their already massive caseload which is sure to only balloon further under Trump’s new rules.
As the Associated Press points out, there are 58 immigration courts in 27 states around the country with a total of 301 judges. The problem, of course, is that those 301 judges already face a mountain of 534,000 pending immigration cases which is likely to balloon even higher under Trump’s administration.
Of 374 authorized immigration judge positions, 301 are filled. Fifty more candidates are in various stages of the hiring process, which typically takes about a year, said Kathryn Mattingly, a spokeswoman for the Executive Office for Immigration Review.
In all, more than 534,000 cases were pending before immigration courts nationwide in February, according to a recent memo from Kelly.
The massive backlog means that processing errors are a common occurrence and ultimately just result in illegal immigrants getting a free pass to reside in the country even longer.
The backlog and insufficient resources are problems stretching back at least a decade, said San Francisco Immigration Judge Dana Marks, speaking as the president of the National Association of Immigration Judges.
“It would be a shame if the mistakes of the past continue to be repeated,” Marks said, citing previous attempts to ramp up enforcement without providing adequate resources to the courts.
When asked if adding more cases to the backlog could threaten the due-process rights of noncitizens, Marks said it is the job of immigration judges to make sure that doesn’t happen.
“But the pressures on the system certainly do allow more opportunities for errors to be made,” she said. “You try to do your best to hear things fairly but also quickly, and there is always a tension between how you strike that balance.”
Of course, one way to relieve the court burden is to simply increase deportations without using the court system at all, a strategy that has the American Civil Liberties Union Immigrants’ Rights Project, and the 1,000s of immigration lawyers that earn a living filing appeal after appeal, up in arms.
Advocates worry the Trump administration will increase the use of procedures that allow authorities to deport people without using the court system at all.
“Instead of actually trying to make the courts better, they just want to use them less, even though that obviously is deeply problematic from a due-process standpoint,” said Omar Jadwat, director of the American Civil Liberties Union Immigrants’ Rights Project.
Mehlman agrees the system is broken, but said advocacy groups and lawyers who keep filing new motions and appeals are part of the problem.
“They understand that time works to their benefit and that the longer you can drag this out, the more bites at the apple you can get, the greater the likelihood that you can find some plausible reason for remaining here in the United States,” he said.
Meanwhile, as Ira Mehlman of the Federation for American Immigration Reform notes, enforcing longer detention periods for illegal immigrants could also help clear out the case backlog as it would inevitably lead some people to view deportation as an attractive alternative to a lengthy trial.
The increased use of detention could also lead immigrants with valid claims for staying in the U.S. to accept deportation, just to avoid extended periods of time in detention, Jadwat said.
Ira Mehlman, spokesman for the Federation for American Immigration Reform, which pushes for strict immigration policies, said the greater threat of detention could deter people from coming to the U.S. or encourage some who are here to leave.
While it may cause the ACLU some heartburn, something tells us that the Trump administration will lean toward fewer trials as the preferred method for clearing out the case backlog facing the immigration courts as opposed beefing up bureaucracy…just a guess.