This week, the Washington Post ran a front page article drawing attention to the fact that our nation’s immigration courts are operating in crisis mode. The immigration courts are so overcrowded that judges are forced to make split-second decisions regarding complex legal issues, calling into question whether the court system is fairly administering justice. The article featured a morning in the life of one immigration judge who had 26 cases to hear before lunchtime. That equates to an average of just seven minutes per case. Given the high stakes involved in deportation cases—which can range from permanent separation from family in the United States to being returned to a country where a person fears for his or her life—a system that is overburdened and under-resourced is simply unacceptable.
Over the past several years, the Department of Homeland Security has dedicated more resources to immigration enforcement efforts, resulting in a 17% increase in cases received by the courts between 2008 (352,117) and 2012 (410,753). But there has not been a commensurate increase in resources for the immigration courts, and as a result, the courts cannot keep up. As of the end of 2013, there were 357,167 cases pending in the immigration courts, and according to the Washington Post, just 249 immigration judges to handle them.
Such extreme conditions compromise immigration judges’ ability to do their jobs. As the article explains, in this system, immigration judges often sit on the bench for 36 hours a week. During this time, they hear a wide of variety of cases. Some involve complex legal issues, and others are more fact intensive. Many involve heart wrenching asylum claims that not only require judges to synthesize layered stories and apply an ever-evolving set of legal standards, but also make character judgments and credibility determinations, usually after talking to an individual through an interpreter. And, because the judges’ schedules are so full, they must make decisions right there on the spot, without the opportunity to fully review and reflect on the evidence and law. As one immigration judge said, it’s “like doing death-penalty cases in a traffic-court setting.”
In an attempt to manage the crushing number of cases, immigration courts have adopted measures to increase their ability to resolve cases quickly. For example, many individuals never see the inside of the courtroom and instead appear remotely by video conference from a prison, often far from their families, legal services, and the evidence they may need to defend themselves against deportation. Other individuals are encouraged to give up their right to any hearing at all and instead to “stipulate” to deportation before ever seeing a judge. While these measures may help manage the caseload, they do not necessarily ensure just outcomes.
To make matters worse, the immigration courts lack many of the due process protections that are standard in the criminal justice system. For example, the government does not provide an attorney when a person is unable to afford one. As a result, nearly half of all noncitizens—including some children—are forced to proceed on their own in immigration court. In addition, harsh laws may apply retroactively, the government is allowed to use evidence they obtained unlawfully, and noncitizens have limited ability to appeal their deportation orders in federal court.
These serious flaws in the immigration court system must be fixed. The immigration bill that the Senate passed last spring would have significantly increased the number of immigration judges and support staff and improved the training, resources and technology available to judges. It also would have made important strides in improving due process by, for example, requiring the provision of counsel for children and other particularly vulnerable individuals facing deportation. But true reform requires more than just adding more judges and providing lawyers for some. The right to consult with a lawyer must be guaranteed at every stage of the removal process, immigration judges must have discretion to prevent disproportionate penalties for immigration violations, all individuals facing removal must be afforded the right to appear in person before an immigration judge, and individuals ordered deported must be able to ask a federal court to review the order. Only when these steps are implemented will we begin to respond to the crisis in our immigration courts in a way that lives up to our nation’s standards of justice.