U.S. funds immigration cops, but not courts


As an immigration attorney, I represent an asylum client who was arrested in the Michael Bianco factory raid in New Bedford, MA in March 2007 – so long ago that at the time of the raid, I was a mere 2L in the Harvard Immigration and Refugee Clinic, proving support to the lawyers helping the newly arrested clients. After various procedural steps, the client was finally given an hearing date for November 2009. As usual, we worked for hours upon hours assembling her brief, country conditions documentation, expert affidavits, and more.
Two weeks before the hearing, the judge took a medical leave and canceled several weeks of his schedule. We appeared in court the next month to get a new hearing date for the client. Her new date: May 2011, four years after her first arrest. That was the first free slot.

On top of that, because the client applied for asylum more than a year after entering the U.S., she is ineligible for a work permit while her case drags on. She must stay in the U.S without the right to work until her case is called — unless she gives up hope and goes back to the country she fears.

And in another recent case, I worried for the entire thirteen months we waited between filing the client’s application for permanent residence and the court hearing that one of the client’s key witnesses and claims to relief, her elderly and ill mother, would die and devastate not only her daughter but her daughter’s chance at a green card.

These kind of delays are pervasive in every one of the U.S.’s 57 immigration courts, and are getting worse by the day, thanks to two factors: the underfunding of the immigration courts, and the explosive funding of law enforcement programs that refer foreign-born people from encounters with the criminal justice system into the immigration court system. While the recent media attention on the immigration system has focused on the possibility of political reform, and importantly, on the shocking conditions and challenges of the immigration detention system, the actual functioning of the immigration courts themselves has received little ink.

The problem is simple: The immigration courts were already a ten-pound bag straining to hold a twenty-pound caseload. With the incredible growth of the Criminal Alien Program, 287(g) local law enforcement partnerships, and Secure Communities jail screenings, without any parallel growth in funding for the courts or prosecutorial discretion, the law enforcement system has dropped a fifty-pound weight right on top of the sack, and it is more than the system can bear if it is to produce real due process. And given what is at stake – the unity of parents and children, protection from persecution, and more – we must produce due process.

Consider the numbers: In fiscal year 2008, the Department of Homeland Security initiated removal proceedings against 291,217 people, who must all be tried by the Department of Justice’s Executive Office for Immigration Review (EOIR), operating with 57 courts and 231 judges. This is a 36% increase from just two years ago. Each judge now completes more than 1200 cases per year. Compare that to 729 cases a year for a Veterans Law Judge and 544 cases a year for a Social Security administrative law judge.

And it is likely to get worse, as Congress continues to pump up funding for Immigration and Customs Enforcement programs. DHS has already announced that they will expand Secure Communities and hope to eventually check the immigration status of virtually every person booked into any local jail in America through their fingerprints. Every one of the people referred from these checks, which include both undocumented people arrested but never charged with a crime as well as long-time permanent residents with criminal convictions as minor as a single simple drug possession charge, will be funneled into an immigration court system whose  resources are stagnant.

But don’t take my word for it. The American Bar Association Commission on Immigration has just released a nearly-500-page report, “Reforming the Immigration System,” analyzing in great detail the holes in the court system. The ABA strongly recommends major changes in judge hiring and training, access to counsel, judicial review, reduced use of detention and videoconferencing, and increased discretion by DHS attorneys. Last June, the Appleseed Center for Justice released a report, “Assembly Line Injustice,” making many of the same points and emphasizing the need for a more professional and consistent court system that provides some kind of counsel to poor clients who are eligible for relief.

Beyond delays, judges are under enormous pressure to finish cases that do come before them on tight “case completion” deadlines, and so to rush complex cases through the system. Individual hearings, even difficult asylum cases, are regularly double and triple-booked into three-hour hearing slots, with the parties knowing that asking for a continuance to finish means waiting another year or more.

In a case I had in 2008 involving a victim of serious domestic violence who was put on an electronic ankle bracelet despite having no criminal record, I had to beg and plead for an extra month to prepare her complicated asylum claim. The judge, sympathetic to my pleas, still had to call the regional assistant chief immigration judge just to get permission to deviate from his case completion deadlines, because the clients with ankle bracelets were being heavily expedited, regardless of the merits of their cases.

Immigration judges experience burnout, high stresses, and “compassion fatigue,”  causing one crying asylum seeker to sound just like another. In their offices, they are given little staff support, often having to share one law clerk among four or five judges. (New job opportunities for unemployed law grads, anyone?) The understaffing at EOIR is not news: former Attorney General Alberto Gonzales ’82 seemed concerned about the issue, recommending DOJ hire 40 new judges. DOJ isn’t even close to that goal, barely keeping up with attrition.

The lack of prosecutorial discretion is another serious problem the ABA points out, as unlike the criminal courts, this is a system where the “cops” (ICE or Border Patrol officers) file the charges and the “prosecutors” (DHS trial attorneys) rarely, if ever terminate cases for purely discretionary reasons, even if the respondents are children, the elderly, or the mentally ill. This leads to another problem: none of these groups, even if they are indigent asylum seekers, are entitled to free counsel. Much has been written on this issue: the lack of access to counsel in addition to documented disparities in immigration judge asylum grant rates has produced what some scholars call “refugee roulette” – an unpredictable system that is not in line with our desires to meet international human rights obligations.

As a result, more and more cases are appealed through the Board of Immigration Appeals, which does not, for various reasons, always review immigration judge decisions very robustly, and land in the laps of federal circuit court judges, who are not happy about their exploding immigration docket. Judge Richard Posner ’62, who has been the sharpest and loudest critic, said as long ago as 2005 that the adjudications of cases by the immigration courts and the BIA had “fallen below the minimum standards of justice.” The immigration judges themselves are not burying their heads in the sand: Dana Leigh Marks, president of the National Association of Immigration Judges, has agreed that for many clients, they are trying “the equivalent of death penalty cases…in a traffic court setting.”

We cannot fund cops but not courts. If local law enforcement partnerships with immigration authorities are here to stay, and it looks like they may be, we must also re-discover prosecutorial discretion and build an immigration court system that can keep pace with our desires to process more and more immigrants through it – a system that is at once bigger, fairer, and more flexible.

And yet, despite the cracks in the walls of the immigration court system, I’ve decided to join up. When my fellowship ends this year, I’m taking an attorney advisor (law clerk) position with the New York Immigration Court.

I am doing so because the system will chug on whether or not people work for it that have defended immigrants or read ABA commission reports. No one is going to take a political wrecking ball to the immigration court system and tear it all down; the ABA’s most radical suggestions are converting it to an Article I court and hiring a lot more judges and clerks. Having been both a public school teacher and a nonprofit attorney, I know good people can do good work even in a stressed organization. I’ve seen that from some of the judges and even DHS attorneys I’ve encountered in the last two years. So I will try to do good work.

But it’s slow going.

Andrea Saenz ’08 is an Equal Justice Works Fellow at Boston’s Political Asylum /Immigration Representation (PAIR) Project. She was Editor-in-Chief of the Harvard Law Record from 2007-08.

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