The immigration court system in the United States is being stretched to the breaking point. Immigration courts have long been expected to do more and more work without the additional funding or personnel needed to do the job effectively. But now, the courts are struggling to handle newer cases involving Central American children and families who fled to the United States to escape the violence and grinding poverty of their home countries. As a result, hearing dates for other, “non-priority” cases have now been bumped to as late as 2019. This would be comical if not for the serious consequences such a delay can have on many immigrants waiting for their day in court. In particular, immigrants who were wrongly placed in removal proceedings, as well as asylum seekers whose fates hinge on the outcome of a hearing, remain stuck in legal limbo and may remain separated from family.
The reason this state of affairs persists, year after year, is that Congress always seems able to muster billions of additional dollars for immigration enforcement but can’t seem to find enough to boost the immigration court system. This is paradoxical since increased enforcement inevitably generates more cases for the courts. Yet since 2011, funding for the immigration court system has remained more or less flat at about $300 million. At the end of 2013, there were 357,167 cases pending in the immigration courts and only 249 immigration judges to handle them all.
As bad as this was, it became much worse last summer as the Justice Department sought to address migrants arriving from Central America—most of whom were unaccompanied children or mothers with children from El Salvador, Honduras, and Guatemala. The Department’s Executive Office for Immigration Review (EOIR) moved to “prioritize” these cases. In the past, only the cases of immigrants in detention were considered priorities. But now, EOIR announced, the “new priorities will be unaccompanied children who recently crossed the southwest border; families who recently crossed the border and are held in detention; families who recently crossed the border but are on ‘alternatives to detention;’ and other detained cases.”
Indeed, these “rocket dockets,” are working through large caseloads with alarming speed, often at the expense of fairness. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, processing times dropped significantly between FY 2013 and FY 2015 for the three countries from which the recent Central American arrivals originated: El Salvador (from 552 to 291 days), Honduras (from 350 to 200 days), and Guatemala (from 490 to 349 days). Yet, the backlog of pending cases in the immigration court system rose from 262,799 in Fiscal Year (FY) 2010 to 429,878 in FY 2015. This increase has corresponded with a major increase in the average number of days that immigration cases are pending: from 447 in FY 2010 to 583 in FY 2015.
Not surprisingly, legal service providers report that cases in rocket dockets are receiving shorter continuances than in past, which means children are given little time to find lawyers who can prepare their cases. Yet these are precisely the kinds of cases where more time is needed. And, without the infusion of more court personnel and resources, it was inevitable that the hearings scheduled for other, “non-priority” cases were suddenly canceled as children’s cases were rushed. These hearings are now being rescheduled for November 29, 2019, simply to keep them on the docket. The Justice Department’s Executive Office for Immigration Review (EOIR) estimates that more than 415,000 immigrants who are not in detention currently have cases pending.
The situation leaves us with an immigration court system that allots to little time for some cases—Central Americans in the “rocket dockets”—and too much time for everyone else, as illustrated by the new five-year wait times for “non-priority” cases. The root cause of this imbalance is the chronic under-funding and under-staffing of the court system, and that is something only Congress can remedy.
Photo Courtesy of Dafne Cholet.