Court Backlog May Prove Bigger Barrier for Migrants Than Any Wall

Court Backlog May Prove Bigger Barrier for Migrants Than Any Wall

Originally Published in The New York Times.


JAN. 24, 2019

More than any border wall, the wait to have their cases heard is the largest barrier many migrants will face to settling in the United States. Lawyers, advocates and even some judges say that the immigration courts are in crisis.


Asylum seekers tend to come from the Central American countries known as the Northern Triangle — El Salvador, Guatemala and Honduras — and they make up a growing share of the backlog. All together, asylum seekers accounted for about half of new immigration cases last year,at a record 159,590 cases.


The Trump administration has viewed this increase with alarm, and has said that migrants are abusing the system. As part of broader efforts to tighten immigration policy, officials have sought to narrow the path to asylum and limited processing of these cases at the border. The White House’s most recent proposal to end the standoff over border security and to reopen the government included several provisions aimed at restricting asylum claims.

But current United States law says that those who can demonstrate a fear of persecution have the right to petition for asylum — if they can stand the wait.


As the backlog has grown, so has the wait time for hearings and decisions. The average case now takes 578 days to complete.

2018Note: Data shows the average number of days between the recorded filing date and the closure date for cases completed in a given year.

Cases that result in relief, like a grant of asylum, last on average nearly three years — or nearly twice as long. That’s partly because these cases are more complicated.

While asylum seekers wait, they can remain in the country but are in legal limbo. “No one benefits from this current system,” said Aaron Reichlin-Melnick of the American Immigration Council, a nonprofit in Washington.

A long wait can hurt asylum seekers in particular, he said. Cases may be harder to prove years down the line if conditions change at home or if witnesses become unavailable.

And where people are forced to wait makes a difference. The White House has sought to detain immigrants whose cases are pending rather than follow a policy Mr. Trump derides as “catch and release.” Under Mr. Trump, parole rates for asylum seekers fell to less than 4 percent from 92 percent, according to a complaint filed last year by the American Civil Liberties Union. (A federal judge in July blocked the administration’s blanket detention of asylum seekers.)

Mr. Reichlin-Melnick said detention can be physically and mentally harmful and impede migrants from accessing legal representation, lowering their chances of winning a case. Lengthy stays in detention can drive asylum seekers to abandon their claims and choose deportation instead.

Citing the low grant rate in asylum cases, the Trump administration says that many claims are “meritless” and that migrants are abusing the asylum process to gain entry into the United States.

Under Mr. Trump, a greater proportion of grants have been denied, but many cases are closed for other reasons, including when an applicant gets relief in some other way.

About one in five asylum cases completed last year ended in a grant, a rate that has mostly held steady over time.


The surge in asylum seekers has added more cases to the overall backlog. But two policies stemming from Mr. Trump’s hard-line stance on immigration are significant contributors as well.

A month into his presidency, Mr. Trump rescindedan Obama-era policy that relaxed prosecution for some immigrants who were in the country illegally. At the same time, Immigration and Customs Enforcement ramped up arrests, adding new cases to the docket.

Previously, ICE prioritized arresting immigrants with a criminal record, who are often ineligible for relief. Now, anyone who is caught in the country illegally gets a court date. Since the end of 2016, the backlog has grown by more than 293,000 cases.

The other major move from the Trump administration had to do with how the courts manage their caseloads. Unlike in other courts that act as independent judiciaries, immigration judges are appointed by the United States attorney general and are part of the Justice Department.

Different administrations often shuffle judges’ dockets based on certain priorities. The Obama administration moved unaccompanied children seeking asylum to the front of the line, and the current administration instructed judges to prioritize cases involving families.

Although such moves are meant to speed up the most urgent cases, they can add to overall processing times because judges need to reschedule court dates and familiarize themselves with the facts, said Ashley Tabaddor, an immigration judge and the president of the National Association of Immigration Judges.

In May, Jeff Sessions, then the attorney general, eliminated an option for judges to temporarily suspend immigration proceedings in certain cases through a process known as administrative closure. At the same time, he moved to reopenmore than 300,000 cases that had previously been closed. All together, those would stretch the court docket to more than one million pending cases.


Immigration courts have been hiring more judges to handle the caseload, bringing the current number of judges to 395. And last year, the Justice Department set a new quota for judges: They each must complete 700 cases per year.

Since 2016, however, judges have completed 495 cases per year, on average. At that rate, it would take about four years to get through the current backlog.

The judges’ union opposed the new quota, arguing that the practice would lead to more appeals and ultimately longer wait times. In addition to the pressure that the quota imposes on judges, Judge Tabaddor explained that some cases simply take more time to process.

Along with other directives from Mr. Sessions, judges say they feel pressured to align themselves with the administration’s policy goals of aggressive prosecution. Since Mr. Trump took office, more cases have resulted in deportation.

The factors that drove the backlog’s growth during the first two years of the Trump administration show no signs of abating. Aggravating the situation, at least for now, is the partial government shutdown that began in December and halted most immigration court proceedings.

By the end of this week, more than 80,000scheduled hearings will have been canceled, according to data from the Transactional Records Access Clearinghouse at Syracuse University. People who waited years for their day in court may now have to wait up to four years more.As lawmakers debate a resolution, 809,041 immigration cases are left pending.

Sources: Department of Justice Executive Office for Immigration Review and analysis of Department of Justice data by the Transactional Records Access Clearinghouse at Syracuse University | Note: Data is for fiscal years. Dots do not represent any order of cases.


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