By Kendal Blust
U.S. immigration courts nationwide are struggling under severe backlogs, despite the addition of nine immigration judges announced in February.
Immigration spending has not kept pace with money spent on border enforcement, leaving courts with steadily increasing caseloads and wait times. These backlogs mean hundreds of thousands of people are in limbo for an average of two years, and the courts have inadequate resources to tackle the problem.
“I think over the past 10 years, we just saw this increase, exponentially every year. Cases on top of cases,” said Gerald Burns, an immigration lawyer in Chandler and the former chair of the American Immigration Lawyers Association Arizona chapter. “Nationwide, the backlog is just out of control.”
Among slow courts, Phoenix at the bottom
U.S. immigration courts have more than 470,000 backlogged cases and an average wait time of nearly 670 days, according to data collected by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, which gathers, analyzes and distributes data.
The addition of nine new judges early this year brought the total number of immigration judges to 254, according to the Executive Office of Immigration Review, the federal government’s immigration court office under the Department of Justice. Despite this effort to mitigate the overloaded system, there are still more than 1,800 pending cases per judge, with some courts seeing much higher numbers.
Arizona courts have nearly 13,000 pending cases and wait times averaging just over two years at 730 days, as of January.
Phoenix is the second slowest court in the country, with an average wait time of 882 days per case, and nearly 10,000 pending cases to be seen by the court’s four immigration judges, according to TRAC. Only Denver courts have longer waits, averaging 933 days.
Other courts in Arizona are not as slow. Eloy and Florence courts, which deal mainly with immigrants in detention, resolve cases in under 150 days on average. However, in Tucson cases are still backlogged by more than a year and a half.
“When you’re comparing it to the criminal justice system, it’s really unheard of that a criminal case is going to last a year,” Burns said. “But in immigration court it’s commonplace for an immigration case to extend itself five, seven, eight years.”
In January, a judge from Florence was moved to the Phoenix courts, upping the number of judges from three to four. However, while the number of pending cases decreased slightly between December and January, average waits increased by 10 days, from 872 in December to 882 in January, according to TRAC.
“There’s tons of ebb and flow to it, but what doesn’t seem to be going away is the fact that the immigration court docket is so huge that the little administrative Band-Aids that they seem to be applying are not making a significant difference,” Burns said.
Border enforcement and immigration courts imbalanced
One reason for the continued increase in immigration backlogs is due to disproportionate spending, according to Faye Hipsman, an associate policy analyst with the Migration Policy Institute, a nonpartisan think tank based in Washington, D.C.
Over the past 10 years, spending for immigration enforcement at the border and in the interior that “in many ways funnels cases into the immigration court systems, has increased tremendously,” Hipsman said. “But the funding for immigration courts has not kept pace.”
The 2015 budgets for the U.S. Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) totaled more than $18 billion (a 105 percent increase since 2003), while the 2015 immigration court budget was about $350 million (74 percent increase since 2003), according to the American Immigration Council report “Empty Benches.”
Congress has proposed modest increases in funding for immigration courts, including provisions for 55 new judges in a 2016 appropriations bill, according to the Migration Policy Institute. But the caseloads keep growing while money for court judges, staff and infrastructure lags behind the demand, Hipsman said.
“We’ve seen that the government is throwing some money at the issue,” Burns said. “It’s like throwing buckets of water on a huge fire. Is it making a difference? It’s too early to tell, but I think the answer is probably no.”
Surges in migration from Central America have also added to the backlogs, Hipsman said.
“For a number of years we’ve seen these backlogs,” she said, “but we’ve seen them rise considerably over the last two years since the Central American migration surge in 2014.”
Central Americans are more likely to end up in court than migrants from Mexico, who are often deported immediately, Hipsman said, because Central American migrants are more likely to ask for asylum.
Cases from Central America have also been prioritized by the U.S. government, pushing wait times back for others in immigration proceedings. Prioritizing Central American cases might be seen as a way to deter a continued influx of migrants from that region, according to Burns. But it isn’t working in the courts.
“That has shifted the cases around, but at the end of the day, it doesn’t impact the numbers,” Hipsman said.
Fast-tracking these Central American cases also causes concern among lawyers and activists that asylum seekers, especially unaccompanied minors, are not given adequate time to prepare their cases on these so-called “rocket dockets.”
“These are women and children. It’s very uncomfortable. It’s very unsettling when you’re in court and you see these little kids traipsing through there,” Burns said. “These cases are very complex.”
Nearly Half a Million in Limbo
With nearly a half-million people still waiting for their day in court and new cases added every day, the ability of courts to deliver justice is in question.
The types of cases vary widely, Hipsman said. Some are seeking asylum. Some are trying to fight deportation orders. Others are family-based cases with U.S. citizen relatives. “And they’re all included in this backlog,” she said.
Asylum cases stuck in the backlog can be “absolutely tragic,” said Lynn Marcus, of the University of Arizona Immigration Law Clinic.
Asylees who are fleeing violence, war or other dangers in their home countries suffer with long waits. They are separated from their families and cannot leave the U.S. while their cases are pending.
“In asylum cases, they have family in the home country who they want to bring here with them,” said Gloria Goldman, an immigration lawyer based in Tucson. Long waits may mean loved ones’ lives are at risk.
It can also make it harder to argue their cases, because situations in their home country can change and memories fade, Marcus said.
Immigrants waiting in detention centers are also particularly vulnerable. Though cases in detention are often given priority, the waits can still be extensive.
“Detained people, because of these backlogs, sometimes end up waiting for years in detention,” Hipsman said.
Detainees are essentially imprisoned, separated from family and given limited rights. It can lead to people giving up legitimate claims because they don’t want to wait any longer, according to Marcus.
“It is a very traumatizing experience,” she said.
Last year, more than 400,000 people were placed in immigration detention, though not all of those cases will end up in immigration court. Of the nearly 170,000 completed immigration cases in 2014, 37 percent of people were in detention during the proceedings. Of those detained, 51 percent came from courts in Arizona, Texas and California.
Detention centers also have faced scrutiny for putting immigrants’ health at risk by not meeting ICE standards, according to a 2016 report from the American Civil Liberties Union, the Detention Watch Network and the National Immigrant Justice Center. Since October 2003, ICE has reported 155 in-custody deaths. Arizona’s Eloy Detention Center, run by Corrections Corporation of America, is among the deadliest. Fourteen people have died in Eloy since 2004, including at least five suicides.
Long waits in detention also lead to higher costs. The U.S. government is responsible for paying for at least 34,000 beds in detention centers every day, at about $160 per bed per day. That adds up to about $5.5 million each day, or nearly $2 billion each year.
Immigrants who are not detained, however, often have the longest waits. For some, that may be beneficial if they don’t have a strong case, but others suffer.
“For the people who have pretty straightforward cases where they are going to end up with permanent relief, it delays that process by months or years, up to three years in some cases,” Hipsman said. “For those people, it introduces a pretty difficult element of uncertainty into their lives.”
In 2014, 72 percent of all initial cases resulted in removal, with less than 27 percent being granted relief or having the case terminated, according to the Department of Justice.
For those people who eventually are removed, staying in the U.S. for years makes it more painful when they do have to leave, according to Hipsman. “They’ve had time to stay here and have maybe had kids or become a part of the community that they live in,” she said.
There is also the chance that people waiting for long periods of time without a court hearing may not show up.
“It’s reasonable to think that if someone is scheduled for a hearing that is two years out for the first time, they may be less likely to come or show up,” Hipsman said. “But it’s hard to say for sure.”
More judges, more justice?
“Justice delayed is justice denied,” Burns said. “When you’re waiting five years for some answer on your case, whether it’s positive or negative, that’s very difficult. The law can change 10 times over five years.”
To tackle the problem, there is an immediate need for a significant increase in the number of judges, according to a report by Human Rights First, which recommended adding 275 to 300 immigration judges over the next three years.
And even more judges may be needed soon, as a large group is up for retirement in the next year, Hipsman said. About 130 immigration judges are eligible to retire by the end of September.
Fixing the backlog will require money for staff and infrastructure, in addition to judges, Hipsman said.
“It’s the most logical step forward, barring changes to who is put into immigration court and who isn’t,” she said. “But those are more questions for the asylum system and how border crossers are treated.”
The backlog is so daunting, some say even with the addition of more judges, the only real solution resides in policy changes.
Many people in immigration proceedings could benefit from deferred action, such as DACA and DAPA, which is currently before the Supreme Court, Burns said. These policies allow certain undocumented immigrants who came to the United States as children or who have U.S. citizen children to stay in the United States, though they do not provide any legal status.
However, Burns hopes for a comprehensive plan that will address the situation of the more than 11 million undocumented people living in the United States today.
“Without a true reform I don’t know if this problem is ever going to go away,” Burns said.