In a federal courtroom in the border city of McAllen, Texas, two weeks ago, 74 migrants waited as Judge J. Scott Thacker confirmed their names and countries of origin. Tired and nervous, the migrants were wearing the clothes they had been arrested in, translation headsets, and ankle chains that clinked as some of them fidgeted.
After having their rights and potential punishments explained to them, Judge Thacker asked the seven rows of migrants – mostly from Honduras, El Salvador, or Guatemala – how they wanted to plead. “Culpable,” they all answered. Judge Hacker sentenced almost all of them, row by row, to time already served and a $10 fine.
At one point, a man from Honduras separated from his son explained why they had traveled to the United States. Thacker listened, then addressed the whole room.
“Ladies and gentlemen, I am not a [specialist] immigration judge; I am not in the immigration system,” he said. “Once you enter the immigration system you can explain your situation to them.”
In immigration court in San Antonio, a few hours north, Judge Charles McCullough is working through cases from the summer of 2017.
Over three hours, he moves smoothly through hearings for a dozen people. One man accepts voluntary departure to Mexico, but then things get complicated. One case has to be postponed because of irregular paperwork. Another sparks a brief debate over whether a US Supreme Court decision last year means it can be thrown out. His final hearing is a mother and two children from Colombia, accused of overstaying their visas. He schedules their next hearing for September.
Staff shortages and an ever-increasing caseload have been problems for years, compounded by successive administrations using the courts to achieve political and policy goals. Cognizant of the burden the immigration court system is under, and the additional strain its stated goal of having zero unauthorized immigration into the US would represent, the Trump administration is going to great lengths to try and streamline immigration court proceedings.
Unlike every other court in the country, immigration courts are part of the executive, not judicial, branch. And the judges who staff those courts are not judges in the common sense, but are employees of the Executive Office for Immigration Review (EOIR), a wing of the Justice Department. Thus, Attorney General Jeff Sessions has significant authority to reshape how the courts operate.
The changes the Trump administration is engineering, however, have experts and former immigration judges concerned that the immigration court system could be even more burdened.
“All those weaknesses, those weak points, are being highlighted by the measures this administration is taking,” says Ashley Tabaddor, an immigration judge in Los Angeles and president of the National Association of Immigration Judges.
“The immigration court system is designed to protect the … founding principles of our American democracy,” she adds. “If you don’t care, then that’s the first brick that’s being taken out of the foundation.”
One example of how that system is being strained further is the estimated 3,000 children still separated from the their families by the “zero tolerance” immigration policy. Trump administration officials told a judge Friday they couldn’t comply with a June court order to reunite children under 5 with their families by Tuesday. (Children over 5 are to be reunited by July 26.) At least 19 parents of those children already have been deported without them, according to reports.
“[A] guy that shows up here every day and does this every day has to find hope somewhere.... I’m hoping that maybe the moral outrage associated with what’s happened will be the thing that finally — the catalyst that finally makes us look hard at this immigration system that we all agree needs to be fixed,” Judge Robert Brack of the US District Court of New Mexico told “PBS Newshour.”
720,000-case backlog
On the day he retired, June 30, 2016, Paul Schmidt was
scheduling cases through the end of 2022. In a system with a roughly 720,000-case backlog, according to Syracuse University’s Transactional Records Clearinghouse, it wasn’t an unusual situation. The backlog has been steadily growing for decades, something Mr. Schmidt blames on recent administrations using the courts to respond to urgent political crises.
For example: When thousands of unaccompanied minors from Central America traveled to the border in 2014, the Obama administration told immigration judges to prioritize those cases.
“Each administration comes in and moves their priority to the top of line and everything else goes to the back,” he says. “You have aimless docket reshuffling, and the whole system after a while loses credibility.”
The Trump administration is now doing the same thing, telling immigration courts to prioritize the cases of detained families. But what concerns Schmidt and other former immigration judges even more are changes Mr. Sessions is making to how immigration judges can hear and resolve the cases before them.
“Our immigration system and our immigration judges are under great stress,” Sessions said in a speech to immigration judges last month.
A main cause, he added, is the asylum process being “abused” by people making fraudulent claims that transform “a straightforward arrest for illegal entry and immediate return into a prolonged legal process.”
“Volume is critical. It just is,” he continued. More than 100 new immigration judges will be hired this year, he said, and called on the judges to complete “at least 700 cases a year.”
In recent months Sessions has made other changes aimed at reducing the case backlog but have raised concerns over their potential impact on due process. These changes include:
In a case Sessions referred to himself in January, Matter of Castro-Tum, he ruled that immigration judges can no longer exercise “administrative closure,” a mechanism used principally for docket management that allows them to suspend removal proceedings in appropriate cases
In another case Sessions referred to himself, Matter of A-B- last month, he ruled that immigration judges can no longer consider domestic abuse and gang violence as factors in asylum requests.
In Matter of E-F-H-L- – a case administratively closed in 2014 that Sessions revived and referred to himself in March – he ruled that judges are not required to hold hearings in all asylum cases
Starting Oct. 1, immigration judges will be required to clear 700 cases each year, and to issue decisions within a few days (potentially increasing the number of oral decisions, which take less time than written decisions). If judges clear fewer than 560 they will be given an “unsatisfactory” rating.
Sessions referred another case to himself in March that experts think could result in a ruling that may restrict the ability of immigration judges to use “continuances,” essentially kicking a case down the road, a mechanism judges often use so the case can be better prepared or resolved.
These changes are happening in the context of an immigration court system that has been overburdened and understaffed for years.
“Adding even more burden to the court without sufficiently staffing it up is going to mean that cases are going to take longer and longer, judges are going to be under more pressure,” says Barbara Hines, the former co-director of University of Texas Law School Immigration Clinic.
And when immigration judges are under pressure to resolve cases, she adds, “that doesn’t lead to careful deliberative decisions.”
Complex area of law
Immigration judges are expected to be physically on the bench hearing cases for 36 out of the standard 40-hour work week, says Carol King, a former immigration judge. But given how complex, and sometimes traumatic, the cases are, the time judges spend off the bench is just as important.
Immigration law “has been compared to tax law as one of the most complex areas of the law, and it only gets more so as time goes on,” says Judge King. “Cases have got so complex that it’s not really feasible to issue an oral decision in many cases.”
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Originally Posted by TheCount
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