The Crisis in the Immigration Courts

Judicature, September/October 2011 | Go to article overview

The Crisis in the Immigration Courts


The cornerstone American principle of fair justice, including timely and meaningful access to justice, is neglected in the immigration court system

The glaring deficiencies in our immigration court system have lingered for far too long. The cornerstone American principle of fair justice, including timely and meaningful access to justice, is neglected in this system. We must elevate this principle back to its proper place. President Obama recently took a step forward by demanding the implementation of prosecutorial discretion within the system. The responsible federal actors must execute that demand. Additionally, further steps are needed to address more comprehensively the shortcomings Of the immigration court system.

Our nation's immigration courts are charged with determining who maybe removed (deported) from the United States. Immigration judges, employees of the Départaient of Justice, preside over hearings to consider the government's charge that an individual should be deported. While there are many challenges facing the immigration courts, the main challenges are overwhelming caseloads, a lack of resources, a lack of lawyers representing foreign nationals, and a lack of independence for immigration judges.

Immigration judges completed 353,247 matters in Fiscal Year 2010. As of December 2010, there were only 272 immigration judges to tackle this caseload. These matters are not simple or routine, but rather require intensive factual inquiry and the application of a body of law said to rival the federal tax code in its complexity. Often die facts are emotionally charged, as these cases frequently involve claims that an applicant will be persecuted if returned to his or her home country. The complexity of these matters (both legally and emotionally), means that these adjudications take time, special care, and constantly evolving expertise. As ûie number of new matterà drastically has grown through increased enforcement efforts, the number of immigration judges has remained relatively stable. Under those conditions, it is not surprising that the backlog in cases is jaw-dropping: 275,316 as of May 2011. One report calculated the average wait time for a pending case in immigration court to be 482 days.

These overwhelming caseloads can be matched to a lack of resources. The funding of the immigration courts has failed to keep pace with the need for adjudication created by increased enforcement. The Department of Justice predicts that it will receive more than 400,000 matters in Fiscal Year 2011. Despite temporary additional funding that allowed for the hiring of some 36 additional immigration judges, the courts are still falling behind, as evidenced by the backlog. Policymakers must recognize that increased enforcement demands increased access to the immigration courts, and realistic funding should be provided so that immigration judges have the necessary time and space to consider these complex cases. In 2010, we joined the American Bar Association in recommending the hiring of at least 1Ö0 additional immigration judges. Not only is that goal unmet, but as the number of matters increases, the number of needed immigration judges must also rise. The lack of resources has led to a poor working environment. Immigration judges scored higher than any other professional group on a workplace burnout test, reporting greater levels of burnout than prison wardens.

A lack of attorneys representing foreign nationals compounds the heavy workload of an immigration judge. In cases where the foreign national is detained during proceedings, only approximately 16% had an attorney in Fiscal Year 2007. …

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