Immigration: Who will the U.S. deport? How does an agency decide?
DHS Secretary Mayorkas tells USA TODAY he’s committed to building trust with immigration officials, and worked with communities to develop guidelines.
Hannah Gaber, USA TODAY
U.S. immigration courts have hit a historic backlog jam not seen in decades, sparking years-long delays for immigrants seeking asylum, according to a new report.
Pending cases at the end of December reached 1.6 million — the largest ever in the court’s four-decade history, according to the report released Tuesday by the Transactional Records Access Clearinghouse, a research group in New York that tracks U.S. immigration cases. Wait times for an asylum claim hearing are averaging 58 months — or just under 5 years.
The mounting backlog of cases – up from 1.3 million at the end of 2020 – creates another immigration challenge for President Joe Biden administration, which has struggled to reverse many of the immigration policies of former President Donald Trump.
“These findings suggest that the immigration courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that immigration judges now face,” the report said.
The number of backlog cases continues to soar even as officials have continued hiring immigration judges. Today, nearly 600 immigration judges across the nation face the oversized backlog. Working without juries, the judges often have the final say in who gets to stay in the United States and who should be deported back to their home country.
Asylum-seekers waiting years for their cases to be heard have usually been allowed in the country to await their hearings or have been returned to Mexico under policies started under Trump, such as Title 42, which expels migrants to prevent the spread of the coronavirus, or Remain in Mexico, which returns migrants to Mexico to await their hearings. Migrants held in detention are often processed much quicker through deportation hearings.
Though the COVID-19 pandemic shuttered courtrooms and contributed to the logjam, the most alarming cause is the rate by which the Homeland Security Department, which oversees immigration enforcement, is adding new cases to the pile, according to the report.
Between October and December 2021, the backlog increased by almost 140,000 cases — higher than the largest three-month increase under Trump (100,000 from June through August 2019), it said.
At the current pace, “the court will receive 800,000 new cases – at least 300,000 more than the annual total the court has ever received during its existence,” the report said.
A key reason for the backlog is that immigration courts fall under the purview of the Justice Department instead of being a truly independent judicial system, said Samuel Cole, executive vice president of the National Association of Immigration Judges, an advocacy group.
Being under the Justice Department means judges and their superiors have to answer to political appointees, rather than act truly independently, such as state and federal judges do, he said. The soaring backlog numbers are disturbing but it’s something he and his fellow judges have faced for years, said Cole, a Chicago-based immigration judge.
The pandemic showed the courts are not a priority for the Justice Department, he said. As state and federal courtrooms quickly launched into virtual hearings, It took immigration courts more than seven months to begin virtual meetings, Cole said. Many still don’t offer them and remained closed.
The House Judiciary Committee will hold a hearing Thursday on the possibility of creating an independent immigration court system.
“Immigration court has long been the stepchild of the Department of Justice,” Cole said. “They haven’t gotten the attention and budgetary requests they require.”
Alysha Welsh, a Washington-based managing attorney with Human Rights First who helps represent asylum-seekers, said the long waits her clients endure to face an immigration judge piles stress on top of the trauma they already experienced fleeing their country and reaching the U.S.-Mexico border.
Immigration courts have been backlogged for years, she said. Many of her clients have cases scheduled as far out as 2024 and 2025.
“It’s frustrating,” she said. “You want to build a life and establish roots. Living in that limbo and having your case get kicked further and further down the line adds to the stress and anxiety.”
The caseload has continued to climb through both Democratic and Republican administrations, according to the TRAC report. At the start of the administration of President George W. Bush in 2001, the backlog stood at just 149,338 cases, it said. By 2008, the backlog had “grown substantially,” and continued to climb under President Barack Obama and accelerated under Trump, the report said.
“But in recent months, the rate of growth has exploded,” it said.
Even though Trump hired more judges and instituted rule changes to courts, the faster than usual pace that Homeland Security filed new cases ballooned the backlog, according to the research group. The rising caseload is not necessarily tied to increase numbers of asylum-seekers.
Jodi Goodwin, an immigration attorney based in Harlingen, Texas, has felt that explosive growth in backlogs firsthand. Nearly all of her 400 asylum-seeker clients have cases scheduled for at least one and often two to three years out, she said.
The delays create anxiety among her clients, especially those who can’t secure authorization to work. Prosecutors in the current system don’t often exercise “prosecutorial discretion” to speed up cases, miring cases in the system, she said. Things as simple as filing a request for a bond hearing could take months, if not longer.
Immigration courts are beyond repair, she said. Only a massive restructuring could improve the system, Goodwin said.
“At this point, the approach to hearing cases and granting benefits has to be rebuilt from the ground up,” she said “The system has already imploded.”
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