Shockingly Substandard Court System
June 23, 2010
By Wais Hassan
On Thursday, June 17th the House Subcommittee on Immigration Citizenship, Refugees, Border Security and International Law held a hearing to discuss the myriad of problems that beset the Immigration Court system in the US. The panel of witnesses included Juan Osuna from the Department of Justice, Karen Grisez from the American Bar Association, Russell Wheeler from the Governance Institute and immigration judges Dana Leigh Marks and Mark Metcalf.
The panel of witnesses agreed that the most important priority for the immigration court system is hiring 2 dozen or more immigration judges. A 2006 review of the immigration system by the DOJ recommended the hiring of 40 Immigration Court judges. In 2006, 230 judges served in immigration courts throughout the US. However, actual hiring of judges was delayed until April 2009, when 10 additional judges were brought on board. Now the present total of judges is 237, which is not a significant increase from 2006 levels. Meanwhile, case backlogs have grown by 23% in the last eighteen months and a staggering 82% over the last 10 years. For FY2008 immigration judges were responsible for completing on average 1,500 cases per judge. The average Federal District judge only has a pending caseload of 400 cases. Furthermore, immigration judges are not provided with much support, the ratio of law clerks to judges is a paltry 1 to 4. The system has to currently deal with 275,000 pending cases, the largest number the system has ever had to deal with at one time.
Juan P. Osuna, Associate Deputy Attorney General of the US DOJ, testified before the committee and provided details about hiring plans within the Immigration Court system. He promised that 47 immigration judges and additional support staff will be hired in 2010 alone. If Congress approves Administration plans for 2011, 20 more judges will be brought on board with the total number of judges equaling 301.
During his testimony, Osuna also highlighted the training initiative that newly hired immigration judges undertake. Panelists did applaud DOJ for implementing these training programs for immigration judges but Representatives like Judy Chu (D-CA) expressed concern that training programs were not rigorous or thorough enough. Newly hired judges complete 5 weeks of training and undertake a test meant to gauge their knowledge of immigration law. The test was first administered to new hires in 2008. However, Mr. Osuna did not have statistics on the initial pass rate of judges who take the test. Judges with longer experience on the bench were not given any assessment. Chu argued that it would be advisable to test those with longer tenures in the immigration courts in order to ensure that they have been keeping up with legal trends and scholarship within the discipline. Mr. Osuna promised he would follow up with the committee and provide more information on how judges have performed on recent tests.
Judge Mark Metcalf argued that judges need more prosecutorial jurisdiction to decide certain cases, especially in cases where it is clear that an individual will receive a stay of removal because of health reasons. Metcalf argued that judges should be able to throw out cases where the alleged defendant is accused of no criminal charge and has health issues that made deportation impossible. Lack of prosecutorial jurisdiction by judges contributes to the huge backlog of cases in the immigration system.
The number of cases awaiting resolution before the Immigration Courts reached an all time high of 242,776 at the end of March 2010, according to an analysis of timely court data by the Transactional Records Access Clearinghouse (TRAC). The case backlog has continued to grow—up 6.3 percent—since TRAC’s last report four months ago, and is nearly a third higher (30.4 percent) than it was a mere 18 months ago. The average length of time cases have been waiting increased to 443 days. Mr. Metcalf asserted that, “cases that routinely take less than three hours to try often require more than five years to complete through final appeal.”
The long duration of most immigration court cases is partially attributable to the lack of resources that delay the courts’ ability to process hearings. Delays are also caused by the Board of Immigration Appeals that oversees the work of the district immigration courts. “Streamlining” changes to the BOA structure has led to a seven-fold increase in the number of circuit court appeals over five years (from 2001 to 2006). The backlog within the BIA is not as large as it was in the early 2000s but the process is still quite time-consuming. The BIA fails to complete 95% of its appellate caseload from year to year.
Another alarming deficit of the immigration system is the high number of alien defendants who evade court proceedings and remain free. Between 1996 and 2008, the US allowed 1.8 million aliens—some here legally, to remain free upon their promise to appear in court. A shocking 41%–736,000 individuals never showed for their court date. This repeated dodging of court has produced a massive increase of deportation orders. In 2002, 602,000 orders lay backlogged. By the end of 2008, 558,000 still remained unenforced.
The other three witnesses in the hearing seemed to echo the testimony of Metcalf and Osuna. Judge Marks raised the question of whether the immigration courts should remain in the DOJ structure or be given independent status as an Article 1 Court. Some witnesses like Russell Wheeler were skeptical that such a radical revision could ever happen. However, all witnesses were in agreement that the immigration court system needs a much greater investment of resources in order to tackle the major responsibilities charged to it.
