As the heated topic of comprehensive immigration reform once again rears its head in Washington, some who spend their lives working in the trenches are worried. Those who are immersed in the nation’s immigration courts say lawmakers need to focus on not just the creation of new immigration laws, but also on restructuring courts so they can handle millions of potential new cases being added to a system that’s already bursting at the seams.
Statistics reveal a disturbing reality -- that's only getting worse. According to the Transactional Records Access Clearinghouse, a non-partisan think-tank at Syracuse University, there are currently 357,167 cases pending at immigration courts across the nation, an 85 percent hike from just five years ago.
Three states could be considered “ground zero” with the highest number of backlogged cases. California leads the way with 77,378 of those cases, where the average wait-time to get before a judge is around 790 days – that’s two years and two months. Texas comes in second, with 56,554 pending cases; people there wait an average of 416 days. New York rounds out the top three with 52,332 and an average wait of 598 days.
Here’s something to consider: The majority of these pending cases involve issues ranging from adjudicating applications for deportation, claimed status review proceedings and qualification for benefits and special waivers. They also handle those who’ve been convicted of serious crimes, are considered a threat to the public and are awaiting deportation hearings.
“You have people’s lives in your hands,” Dana Leigh Marks, president of the National Association of Immigration Judges, said in an interview. “You have this tremendous pressure to do the right thing, with the same pressure to work as quickly as possible.”
Judge Marks is one of 220 active immigration judges in America; she works in the bustling San Francisco sector. There are 252 slots for judges in the system, but thanks to a U.S. Department of Justice hiring freeze, there are currently 32 vacant positions. What’s more, Marks said that roughly 100 of the presiding judges are eligible for retirement this year.
“We have been behind the curve for years,” she said. “As caseloads nationwide have just been skyrocketing, the number of judges has been decreasing, and we are at a crisis point this year, because we could have a veritable tsunami of retirements.”
But the people really suffering seem to be immigrants and U.S. taxpayers.
“When you have this kind of an extended wait time, in our opinion, there's this emotional burden that people go through,” said Martin Valko, a prominent immigration attorney at Chavez & Valko in Dallas. “It's a rollercoaster, because in order to qualify for most common relief in court, you have to meet some stringent criteria.”
Valko said in an interview that he’s currently representing clients who won’t get before a judge until 2016. He spends much of his time trying to navigate the extremely crowded and complicated system, while doing his best to help those who hire him.
“Sometimes you do feel rushed, because (judges) feel the pressure of the cases they have assigned to them, but I think, under the circumstances, they're still doing a pretty good job,” Valko said.
But insiders, like Valko, see a real irony with the current structure. He points to data from U.S. Immigration and Customs Enforcement, the federal agency tasked with arresting and deporting undocumented immigrants, which shows how much money the federal government is spending to detain undocumented immigrants while they wait to have their cases heard.
According to a report released by the National Immigration Forum, an immigrant advocacy group, it costs on average from $119 to $159 dollars each day to house just one immigrant detainee. On any given day in this country, up to 34,000 detainees are housed in U.S. detention centers. That’s between $4 million and $5.4 million every day.
Those kind of figures lead many immigration lawyers to argue for alternative, cheaper and more feasible ways to reduce the costs.
“The statistics that I've looked at show 14,000 of those 34,000 are non-criminal individuals,” said Valko. “So why can't they be taken out and put on an alternative monitoring, such as ankle braces, where it's 10 bucks a day? That would save a couple of million dollars a day.”
Most immigration judges and attorneys agree the long-term solution to the problem is to restructure the entire immigration court system, which is actually not within the Homeland Security Department; the Executive Office of Immigration Review is actually still housed in the U.S. Department of Justice, overseeing 59 immigration courts nationwide.
Marks supports an overhaul of the system, noting that “If the immigration courts were restructured in a manner that is more similar to the tax courts, or the bankruptcy courts, there would be more transparency,” Marks said.
“Funding would be able to be more directly allocated and be more responsive to the changing caseload needs," she added.
The Executive Office of Immigration Review did not provide comment for this article. The agency has a long-standing policy of not allowing sitting immigration judges to comment. Marks is the only exception since she serves as spokesperson for the judges' union.