(This is part two of a two part blog post; the first part can be found by following this link. Please note that all client names are pseudonyms)
As of October 31, 2016, there were more than 521,000 cases pending in our nation’s immigration courts – the most ever. By comparison, just 10 years ago, there were less than 169,000 cases pending; and five years ago, there were fewer than 300,000. Nationwide, Texas has the second most immigration cases with more than 93,000 total and 11,000 in Dallas. The immigration courts, which are part of the Department of Justice (DOJ), have hired some new immigration judges in 2016, bringing the total number nationwide to around 300. Dallas added one judge, upping the total number to six. But these appointments have been insufficient to address the backlog. On average, immigration judges have 1,500-1,800 pending cases. According to some studies, it would take each judge about 2.5 years to adjudicate all of the current cases in the system. But with more new cases being filed each month than being closed, the backlog continues to grow.
My client Ali came to the United States in early 2011 seeking asylum because government agents in Ethiopia repeatedly arrested and tortured him for his political activities and because he belongs to a minority ethnic group. During one period of detention, government agents whipped him with electric wire and threatened to inject him with HIV-infected blood. His case was referred to the immigration court in June 2012. His hearing was originally scheduled 2 years out from his initial court date, and then cancelled and reset to the spring of next year – more than 5 years after he originally applied for asylum. Meanwhile, back in Ethiopia, police continue to question his mother and brothers regarding his whereabouts. Although Ali appears stoic, a psychological evaluation recently revealed that these repeated delays have taken a significant emotional toll on him.
One reason for the backlog is that the budget for the immigration court system has not kept pace with the budget for immigration enforcement. From 2003-2015, the budgets for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) increased 105 percent while funding for the courts increased by just 74 percent. Though there are now sufficient funds to hire more immigration judges to reach a total of 374, in the last year, DOJ was unable to fill all the open slots and is still short 100 judges. Human Rights First (HRF) has estimated that another 150 judges (in addition to the 374 currently funded) would need to be hired to eliminate the backlog by 2023. Without these additional judges, HRF estimates the backlog in 2022 will be more than 1 million cases. President-elect Trump recently announced, in his plan for his first 100 days in office, a hiring freeze on most federal employees. If that includes immigration judges, then retiring court personnel would not be replaced. If this plan is implemented, and if the new administration continues to increase funding for enforcement without allocating more resources to the courts, delays will grow exponentially.
The negative impact of the backlog is severe. Notwithstanding the potentially severe consequences, people in deportation proceedings have no right to government-paid counsel. Knowing that a case will be delayed for several years, and may get postponed repeatedly, discourages lawyers from taking these cases, especially pro bono. In Imani’s case, her team of volunteer attorneys has changed several times over the past four years, due to maternity leave, a change in jobs or simply becoming too busy with other work to stay on the case. Fortunately, the large Dallas law firm that took her case has kept its commitment to her. But even with this dedication, delays bring big challenges to attorneys. Evidence can become stale and memories fade, making it more difficult to win. Time and resources are wasted as new lawyers must learn the facts, and work to establish trust and rapport with their clients, who must repeatedly describe the horrible suffering they endured to new representatives. The delays also burden volunteer translators and the generous families, churches and other groups who provide shelter, food, clothing and other necessities to our clients.
The backlogs also stretch to the appeals process. My organization has two clients whose cases have been pending since 2010. Both clients initially lost their cases, won on appeal, and had their cases sent back to the same immigration judge who originally denied them. Delays in immigration court and with the Board of Immigration Appeals (BIA) have caused many cases to remain pending for a protracted amount of time. Appeals to the BIA typically take one-and-a-half to two years.
Separation from children and family is a challenge that torments many of our clients. One client from Zimbabwe suffers from severe depression and post-traumatic stress disorder. Her counselors have determined that she is unable to heal due to her separation from her family and the associated guilt. She constantly worries about her children’s safety and well-being since the primary caretakers of her two youngest children died and they are now with an elderly relative who cannot adequately provide for them.
Another client has reported that his wife still receives threats from authorities who are looking for him. Still another, whose asylum claim has been pending for well over a year, was completely helpless when his toddler, who he has not seen since she was an infant, almost died from illness. These are all people who exercised their human rights to speak out against oppressive governments and were attacked for it.
The delays also raise concerns about due process. When judges and court staff are underfunded and carry such large caseloads, it makes it difficult for them to give adequate consideration to each individual’s history and the evidence submitted. The pressure on judges to get through cases and decrease the backlog raises concerns that the process lacks fundamental fairness, as required by our Constitution.
I will never forget my client Abdi from Ethiopia, who was also interrogated, beaten unconscious, and tortured on multiple occasions. He came to the U.S. in early 2013, applied for asylum the next year, but did not receive an interview. Instead, he was detained for overstaying his visa, and forced to forego the affirmative asylum process. After Abdi bonded out of detention, he was not even scheduled to see a judge until almost a year later. Then that hearing was cancelled, and now an immigration judge will hear his claim in 2018. That will be four years after his initial application – and will be the first time any U.S. government official has heard his case. This raises questions about the integrity of the entire process. Abdi followed all the rules, yet the delays in the system continue to punish him.
After years of being ignored and under-resourced, the asylum system and the immigration courts are faltering and the people who are paying the price are the most vulnerable. Something needs to change.
Written by Christine Mansour, AILA Member, Texas Chapter