Concerns are growing over the state of the US immigration court system amid increasing case backlogs and staff shortages. A report published by The Guardian claims that America’s immigration courts are ‘struggling to function at the most basic level’. Meanwhile, figures show that the backlog of cases now stands at more than 1.6 million.
The immigration court system is reportedly so damaged that judges, scholars and attorneys all share concerns about whether immigrants due in court will actually receive notice prior to their hearings so that they know to turn up and aren’t deported in their absence. This is a particular concern given the unstable immigration policies at the US-Mexico border.
In an exclusive interview, Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), told The Guardian: “It’s very worrisome. The fundamental requirement for a full and fair hearing is notice of your hearing and the ability to attend your hearing.”
“I see incredible efforts being made by the staff – the bare-bones staff in some courts – to try to support these very, very heavy dockets. But it’s extremely challenging for all of us to meet the demands,” Ms Tsankov added.
For decades, the US immigration court system has been plagued by dysfunction, which was exacerbated during Donald Trump’s time in office. Since becoming US President, Joe Biden, has struggled to steady the ship.
With the US immigration court system in such dire straits, concerns are mounting over the futures of millions of people. Undocumented immigrants live in fear of being split from their US children and spouses, while others face the prospect of persecution or death in their country of origin if they are deported.
Meanwhile, there are those who face being removed to countries they have never been or not seen in decades, all of whom are fighting for their right to a court hearing in a system that is currently ill-equipped to help them.
Due process is suffering
Muzaffar Chishti, a senior fellow at the Migration Policy Institute, said: “Let’s make it absolutely clear: due process is suffering. There’s just no way around that. It’s a system in crisis.”
Chishti said that he can ‘see all the hallmarks of a strong administrative law system suffering in America’s immigration courts, which are housed under the Department of Justice (DoJ) in the executive branch of the federal government and not within the judicial branch’.
With Trump introducing a number of hardline US immigration policies, which were pivotal to his 2016 presidential campaign, he flooded American immigration courts with judges that were more likely to deport people.
The Trump administration recruited a high number of US immigration judges in such a short space of time, which the American Bar Association warned would result in under-qualified and potentially biased judges – many of whom had no immigration experience – presiding over cases.
The courts were put under further pressure by sweeping statements made by US officials under the Trump administration, such as former attorney general Jeff Sessions, who said that the ‘vast majority of US asylum claims were invalid’.
As a result, judges were confronted by performance metrics that demanded they race through a minimum of 700 cases per year with a key focus on deporting those with invalid claims.
The consequence is that judges across America’s 70 immigration courts are adjudicating over highly complex cases with devastating outcomes.
Bureaucratic log jams
Meanwhile, amid a series of bureaucratic log jams, such as the remain in Mexico policy, case numbers have spiralled out of control in a matter of years. In 2016, case backlogs stood at 516,000, but outstanding cases are now more than three times this number, according to data collected by Syracuse University’s Transactional Records Access Clearinghouse (Trac).
“Quarterly growth in the number of pending immigration court cases between October and December 2021 is the largest on record,” said a Trac statement.
Meanwhile, president-elect of the American Immigration Lawyers Association (AILA) Jeremy McKinney, said: “No progress was made under Trump. As a matter of fact, there was significant and historic backtracking. All the efforts of the prior administration did was create more litigation.”
Last year, US Vice President Kamala Harris, acknowledged that the US immigration system is ‘deeply broken’. However, while the Biden administration has reversed many of Trump’s controversial US immigration policies, those that have overwhelmed the court system – such as the remain in Mexico policy – have not been scrapped.
The Biden administration’s US immigration court appointments have been described as ‘befuddling’, with many appointees previously serving as prosecutors, immigration enforcement officers and military personnel, according to the Brennan Center for Justice.
Meanwhile, despite the Biden administration pledging to double staff numbers in the courts in an effort to ease the burden on judges, case numbers are not dropping as quickly as hoped. Worryingly, cases actually grew by 180,000 between fiscal years 2021 and 2022.
Tsankov said: “When you’re running a court and you know that due process requires that parties have access to their hearings and that they’re aware of when their hearings are going to occur, just hiring more judges will not fix the problem.”
“Judges require legal assistants, judicial law clerks, interpreters and front-window staff – support roles that are critically under-filled in cities as geographically diverse as Philadelphia, Salt Lake City and Memphis. For example, at one immigration court in New York, they are staffed at only 30%,” Tsankov added.
Chishti said: “It all adds up to courts suffering from a lack of acceptability, affecting the integrity of the whole system. People don’t have faith in it.”
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