In April, Attorney General Jeff Sessions travelled to Nogales, Arizona,
to make an announcement. “This is the Trump era,” he said. “The
lawlessness, the abdication of the duty to enforce our immigrations
laws, and the catch-and-release practices of old are over.” While his
tone was harsh, and many of the proposals he outlined were hostile to
immigrants, he detailed one idea that even some of his critics support:
the hiring of more immigration judges.
U.S. immigration courts are facing a backlog of over half a million
cases—and each one, on average, takes almost two years to close. These
delays mean that everyone from asylum seekers to green-card holders
faces extended stays in detention while awaiting rulings. Speaking about
the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”
Much of the backlog can be traced back to the Obama Administration, when
spending on immigration enforcement went up, while Congress dramatically
limited funds for hiring more judges. The number of pending cases
grew from a
hundred and sixty-seven thousand, in 2008, to five hundred and sixty
thousand, in 2017, according to the Transactional Records Access
Clearinghouse.
The broader trend, though, goes back farther. Since the creation of the
Department of Homeland Security, in 2002, the increase in resources
allocated for border security and immigration policing has always
significantly outpaced funding for the courts. (Immigration courts are
part of the Department of Justice.) As more and more people have been
arrested, detained, and ordered deported, the courts have remained
understaffed and underfunded. “We’ve always been an afterthought,” Dana
Leigh Marks, the president of the National Association of Immigration
Judges, told me.
Roughly three hundred judges nationwide are responsible for the entire
immigration caseload, and hiring is slow—filling a vacancy typically
takes about two years, according to the Government Accountability
Office. In Nogales, Sessions said that he would try to streamline the
hiring process. But until that happens the Administration has been
relocating judges to areas where they’re deemed most necessary. “We have
already surged twenty-five immigration judges to detention centers along
the border,” Sessions said, as if talking about military troop levels.
Since March, New York City, for example, has had at least eight of its twenty-nine
immigration judges reassigned, at least temporarily, to Texas and
Louisiana, WNYC has reported. But in relocating them the federal government is exacerbating the city’s own significant backlog: roughly eighty thousand
pending cases and an average delay of six hundred and twenty-five days
per case. “Letting political forces impact the courts’ docketing
strategy disrupts our system,” Marks said. “The temporary assignments to
the border courts have been extremely problematic. There’s no one to
backfill those slots.” The situation reminded her of a move made by the
Obama Administration in 2014, when tens of thousands of unaccompanied
children showed up at the U.S. border seeking asylum. The Department of
Justice sent immigration judges to the border states to handle the
sudden spike in cases, leaving their home states in the lurch. “We
cleared the desks,” Marks said. “We pushed back cases that were ready to
be heard, and we heard cases that weren’t ready to be brought to
completion. There’s only so fast you can go and still allow due
process.”
The Trump Administration’s significant enforcement push is putting
another sudden strain on the system. So far this year, federal
immigration authorities have made forty per cent more arrests than they
did at an equivalent point in 2016, and the Department of Homeland
Security has eliminated all the guidelines for how Immigration and
Customs Enforcement (ICE) is supposed to prioritize the people it
targets for arrest. “The largest federal law-enforcement agency in the
country, which is seeking more funding and less accountability, is given
carte blanche to go after who it wants,” Avideh Moussavian, a lawyer at
the National Immigration Law Center, said of ICE and Customs and Border
Protection. “It’s creating this ballooning problem of subjecting so many
more people to detention, with no interest from the federal government
in providing resources to insure that they have fair proceedings.”
Immigration proceedings are civil matters rather than criminal ones, so
the protections generally afforded to criminal defendants don’t apply to
individuals with cases before immigration judges. If a defendant wins in
a criminal case, the government can’t appeal. Nor can authorities hold a
person in prison after an exonerating ruling. In immigration court,
however, ICE can appeal if a judge decides to close a case, and often an
individual will remain in detention while that process runs its course.
The Supreme Court is currently weighing a case in which a large class of litigants are seeking mandatory bond
hearings every six months for anyone in immigrant detention. As it
stands now, individuals are held indefinitely while they wait for a
judge to rule on their situation, whether it’s an asylum claim or a
contested deportation order. (Being detained doesn’t mean their cases
are weak; according to Justice Department figures, roughly twenty per
cent of all deportation cases resolved in 2016—some twenty thousand
cases—ended in the immigrants’ favor, with the deportation orders being
dropped.) In immigration cases, Anthony Enriquez, a lawyer with the
Immigrant Defense Project, told me, people “wear the same jumpsuits as
criminal defendants. They’re put in the same cells. Still, they don’t
have the same protections.”
Earlier this month, in the Bronx, I met Christian Yarleque, a
forty-seven-year-old lawful permanent resident who came to the U.S. from
Peru three decades ago, when he was fourteen. In 2008, he was arrested
for drug possession, a misdemeanor, and he served six months in jail.
One morning, seven years after his release, ICE agents showed up at his
apartment, in the Bronx, with a deportation order. He let the agents
inside because they told him they were with the police. “They deceived
me,” he said. When they arrested him, he told them that he’d already
served his time. “Not with us,” they responded. (An ICE spokesperson
told me, “ICE deportation officers will identify themselves
appropriately on each arrest.”) After three and a half months in
detention, an immigration judge heard the case and decided to close it,
effectively quashing ICE’s order of deportation. ICE decided to mount an
appeal. Because of the court backlog, it took more than a year before
another judge ruled on the appeal, and though the judge set bond, it was
well beyond what Yarleque could afford to pay. During that time,
Yarleque remained in a detention center, in Newark, while his family
struggled—he had been the family’s primary breadwinner. Each week, his
wife came to visit him, bringing him money for food and phone time, so
that he could speak to his kids regularly. On Tuesdays, ICE officers
came to meet with inmates who were considering accepting a deportation
order just to escape detention. “I thought about throwing in the towel
at one point,” he said. “I had no idea when I’d be able to get out.”
Yarleque was comparatively fortunate: through a program called the New
York Immigrant
Family Unity Project,
he had a lawyer. Most immigrants in detention across the country don’t.
One study,
done by an appellate judge, in 2011, found that roughly twenty per cent
of immigrant detainees with lawyers won their cases, compared to just
three per cent of immigrant detainees without lawyers.
In April, after almost two years in detention, Yarleque won his appeal,
and the judge ordered ICE to drop the case. He was released, and is now
back in the Bronx with his family; soon he’ll begin a new job, as a
janitor at a local hospital. He can start work just as soon as D.H.S.
returns his green card. When I asked him when that would be, he turned
to his lawyer, who had joined us for the conversation. “It’s hard to
know,” he said. “There are bureaucratic delays.”