Immigration courts drowning in unheard cases

America’s immigration courts are drowning in a sea of backlogged cases that have reached an all-time high this year — more than 860,000 cases and fewer than 500 judges to hear them, according to the United States Department of Justice Executive Office of Immigration Review.

That’s more than a 350 percent increase in pending cases from a decade ago. Meanwhile, the crisis at the southern border is threatening to crash the system entirely as waves of families from Central America seek asylum in the United States.

“That caseload is by far the largest-ever pending caseload before the department, marking the 12th consecutive year of increased backlogs,” U.S. Attorney General William Barr said last month before the Senate Appropriations Subcommittee for Commerce, Justice, Science, and Related Agencies.

President Donald Trump and the White House are struggling to deal with the crisis in the courts and along the border. New harsher directives were issued last week to crack down on asylum seekers and ease court cases.

Government crackdown could damage labor market  

In an April 29 memo to Attorney General Barr and Acting Homeland Security Secretary Kevin McAleenan, the White House issued several directives to be carried out. Among them: charge migrants a fee to apply for asylum and bar them from receiving work permits while their cases are adjudicated.

Immigration advocacy groups immediately reacted, saying the policies are ill-conceived, would hurt immigrant employees, and result in more case appeals.

“The new guidelines would prohibit anyone who has entered or attempted to enter the U.S. unlawfully from qualifying for work authorization, essentially stripping asylum seekers of their ability to provide for themselves, even in cases where government error has caused significant delay,” the American Immigration Lawyers Association (AILA) said in a statement in response to the proposed guidelines.

The memo also directs agencies to draft regulations to speed up adjudications for asylum cases to 180 days but does nothing to resolve the immigration court backlog, AILA Executive Director Benjamin Johnson said in the statement.

“It would cause immigration court dockets to be reshuffled once again, forcing people who have been waiting in line for years to wait even longer. It also strips asylum seekers, who often have fled unspeakable conditions with barely the clothes on their backs, of their ability to work, even if their hearing is severely delayed through no fault of their own. This means asylum seekers will not be able to financially support themselves while their case is pending, an unnecessary and harmful change,” he said.

Some of the directives would “dramatically alter how asylum seekers obtain protection, and dilute their rights during that process,” Johnson said.

“AILA wholeheartedly supports the ideal of an efficient and effective asylum process, but such a process must also allow for a meaningful chance to make the claim for protection, with access to counsel, and a fair day in court,” he said.

Kushner offers more business-friendly plan   

In another announcement last week, Trump’s son-in-law and senior adviser Jared Kushner, presented his long awaited immigration reform plan.

Kushner’s proposal would create a more merit-based system for asylum seekers, giving preference to those with job skills before relatives of immigrants already in the country. It also includes a border security bill that, in part, would modernize ports of entry to ensure all vehicles, packages and persons are scanned.

Trump and Kushner met Tuesday afternoon with a dozen Republican senators who seemed largely receptive to the effort, major news outlets reported.

What happens next is the clincher. For Trump and his predecessor, President Barack Obama, immigration reform has remained elusive.

Decade long backlog in the making

Much of today’s court backlog is due to Congress’ inability to come to agreement on immigration reform for more than a decade.

DOJ statistics show pending cases increased from 223,759 in 2009 to more than 860,000 this year. Border apprehensions are up 374 percent over last year, according to the U.S. Border Patrol.

One contributing factor is the Trump administration’s directive this year to reopen thousands of nonviolent removal cases.

Another factor in the backlog is the increase in asylum applications including 70,000 more asylum applications filed in 2017, said Terri Kaltenbacher, an EOIR spokesperson. Asylum cases require proof of past persecution and typically take longer to process.

For fiscal year 2019 through March, the median case completion time for detained migrants was 42 days and the median case completion time for non-detained immigrants was 666 days, she said.

In Arizona, 15 immigration judges in four courts currently have 12,438 pending cases, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in New York that tracks data from the Department of Justice and other public agencies.

To tackle the mounting caseload, the White House has increased hiring of judges over the past two years. This year, EOIR brought in 31 new immigration judges in March and more are expected this month. President Trump also is asking for an additional $71.1 million in his proposed 2020 budget to fund 100 more immigration judges and hundreds more support staff and prosecuting attorneys. His $4.7 trillion budget also has $8.6 billion targeted for border security barriers.

New solutions needed

Industry and advocacy groups have long called for immigration legislation that will protect American borders but welcome immigrant workers who want to work hard to achieve the American Dream.

They are calling on Congress to streamline immigration and provide a path to citizenship for Dreamers as well as Temporary Protected Status (TPS) and Deferred Enforcement Departure (DED) holders.

A top priority should be a well-funded court and immigration management system with adequate numbers of judges to properly handle the demand created by Border Patrol apprehensions, stated Marco Lopez, the former Department of Homeland Security chief of staff and the founder and CEO of international corporate advisory firm, Intermestic Partners, in Phoenix.

“The Trump administration’s tool of choice has been to flood the zone with U.S. Border Patrol agents, National Guard troops, Customs and Border Protection officers and other federal law-enforcement personnel as a deterrent,” Lopez stated in an opinion piece in the Arizona Republic. “It takes an average of 736 days for an immigrant to get his or her case heard in court. That’s more than two years for an immigrant to have his or her case heard – a lengthy process that encourages many others to make the trek hoping to strike the same deal, since they’re likely to stay on U.S. soil during the court proceedings.”

It’s time to do better for long lasting change, Lopez said. One solution is to provide aid to Central America and cross-border cooperation with Mexico and Northern Triangle countries to promote healthy business relationships and improve the lives of citizens.

“Government resources can be targeted for training, tackling corruption, modernizing permit processes, creating a standard licensing regime that accelerates business development across borders,” Lopez said. “We need this kind of collaboration between governments and the private sector. Business people know how to invest; governments need to work together to strengthen the rule of law, judicial institutions and law enforcement, and to promote a common regulatory system that facilitates regional investment.”

Victoria Harker

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