The incumbent administration has been very vocal about immigration, especially as it relates to illegal immigration. President Trump has gone as far as to call for a wall along the US-Mexico border to stymie the flow of immigrants. The President has also pushed for a more aggressive policy to locate, detain and eventually deport illegal immigrants already within the country. However, with a large backlog already facing immigration courts, this antagonistic stance on immigration may only serve to undermine the very court system needed to fully carry out this stance.
According to the Executive Office for Immigration Review, a branch of the Department of Justice, “Immigration court hearings are civil administrative proceedings that involve foreign-born individuals… whom the DHS has charged with violating immigration law. In these hearings, immigration judges determine whether respondents should be ordered removed from the United States or granted protection from removal.” These are the courts directly responsible for implementing a crackdown on illegal immigration. However, this system is inefficient and already strained. Currently, there are almost 668,000 cases pending within these court systems with not enough judges to hear them. This has resulted in many immigrants waiting two to four years for their cases to be heard.
One of the primary reasons behind the enormous increase in pending cases at the end of every fiscal year is the growing number of immigration arrests. Immigration arrests doubled from 1994 to 1998, 1998 to 2006 and 2006 to 2013. Most of these arrests have been along the US-Mexico border, with many apprehensions taking place in Arizona and Southern Texas. By 2014, there had been 81,881 immigration-related arrests, which made up half of all federal arrests in that year. Some of this increase in immigration arrests can be traced back to the Obama administration’s more welcoming stance towards immigrants, as the backlog began rising quicker during Obama’s first term. The crippling effect of enormous caseloads on the immigration court system is further exacerbated by lack of digitized case data, which forces judges to navigate mountains of paperwork for each case, lengthening the judicial process.
This case backlog has already damaged the immigration court system. With hundreds of thousands of pending cases, the wait time for a case to be heard can be years in length. These delays also impair immigrants’ ability to benefit from pro bono legal representation, a predicament that often forces them to represent themselves in court. Both democrats and republicans have spoken out against the insufficiency of the court system and cite a need to reform it. Democrats contend that this delay leaves those accused of an immigration crime in unnecessarily protracted legal limbo. Republicans claim that this delay allows undocumented immigrants to remain in the US for years before being deported to their home countries, if they are deported at all. With support for immigration court reform coming from both sides of the political aisle, there is clearly a need to find solutions to this fundamental and extensive issue.
The Department of Justice has already laid out a comprehensive plan to decrease the backlog by hiring more judges, upgrading technology and minimizing delays of deportation cases. The Department hopes this plan will half the backlog by 2020. Many say that the courts will need at minimum 500 judges (currently, there are 300 employed) to hear 500 cases a day until 2023 to fix this backlog. While this court system does need more judges, spending time and resources on these hirings might not be the best solution. First, this could be difficult because procedural hurdles can prolong the hiring practice to last almost two years, at which point the backlog would have grown even more. Second, some journalists question if there are even enough qualified attorneys to fill the positions.
Many human rights groups also suggest more funding for immigration courts, as well as potentially increasing legalization programs to decrease the amount of immigration arrests. However, with the current administration, it does not seem like there would be many legalization programs passed on Capitol Hill. On the other hand, Nolan Rappaport, a contributing writer for The Hill, has suggested some policies that have the chance of becoming a reality. Rappaport suggests that President Trump could consider asking Congress for a legalization program based on American employment needs, which could also include, what President Trump calls “extreme vetting,” and meaningful background checks. Another policy Rappaport supports is getting the Department of Labor involved to enforce stronger regulation surrounding employers hiring unauthorized foreign workers. If stronger programs were implemented to fine these employers, it would hopefully lower the amount of illegal immigration. Even with these more moderate suggestions, however, it may still seem unlikely that President Trump would deviate from his hardline stances on illegal immigration.
Another solution, supported by the American Bar Association and the National Association of Immigration Judges, would be to remove the immigration court system from the purview of the DOJ and establish it as an independent entity. This plan would allow immigration courts to have fuller control over their own organizations and create separate trial and appellate divisions to correct any errors, hopefully making the judicial process more efficient. This would also help to promote a less biased view of illegal immigration. While there is no definitive proof that the increase in deportations, in a system that is supposed to provide unbiased decisions, has been caused by President Trump’s hard stance on immigration, the DOJ’s press release promoting its increase deportation rates under the Trump administration might indicate that not all decisions made in these cases are completely unbiased. Seeing the potential for unbiased decisions made in these courts has organizations such as The National Association of Immigration Judges to continually call for an independent immigration court system. However, this might also not be plausible since these groups have been calling on this for years and the DOJ does not seem to be willing to separate itself from the court.
As the backlog gets worse, more solutions have been proposed to attempt to stem it. While hiring more judges might be a good approach, it should not be the only solution. More funding is clearly needed and a reduction in the amount of cases brought to the court would be helpful, whether this is through larger legalization programs or stronger prevention of illegal immigration into the country. While making this court system independent would certainly make it less biased and more efficient, going through this process now would most likely slow processes in this court even more and greatly worsen the backlog. Nonetheless, any action to improve this broken system needs to be carried out quickly. According to Human Rights First, a non-profit human rights organization, without any reform in the court system, the backlog of immigration cases will reach one million by FY 2022, further stretching the already scarce resources of this court system.