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Does Due Process Exist At Immigration Court?

June 3, 2011

The Immigration Court: In Search Of Efficiency, Justice, And Due Process

Earlier this week, Immigration and Customs Enforcement (ICE) officials announced the opening of a new detention center in Southern California.

I have a better idea.  Build an immigration court.  Hire some new judges.

As a deportation defense lawyer, I know how badly the judiciary is overworked.  And I understand how this undermines the ability of immigrants to defend themselves at immigration court.

The Problem Of Case Overload At Immigration Courts

The immigration court’s workload was the topic at a recent Senate Judiciary Committee hearing.

At the hearing, entitled “Improving Efficiency and Ensuring Justice in the Immigration Court System,” experts addressed the growing caseload confronting our immigration court system.

The ICE Viewpoint

A former high ranking ICE officer during the Bush administration, Julie Myers Wood, testified, “Since the 1986 amnesty, inconsistent enforcement, coupled with an inefficient and restrictive pathway for legal access to the country, have left us with a broken immigration system.  The immigration courts are a key part of this system.”

She stated the immigration court system continues to take in more cases than it decides each year, causing an increasing backlog of unresolved cases.

In fiscal year 2010, she pointed out, the immigration courts received over 392,000 new cases from DHS, but only resolved 353,000.

The Immigration Court Perspective

Juan Osuna, Acting Director of the Executive Office For Immigration Review (EOIR), focused on cases which involved court hearings.  He noted that in FY 2010, 325,326 new proceedings were started in immigration courts.

At present, there are 268 judges in 59 immigration courts.

When these numbers are broken down, as discussed in Reforming The Immigration Court System: Problems, Solutions, And Obstacles, they show a broken immigration court system.

Each judge must issue 1,213 decisions per year or slightly over 100 decisions per month.  This equals about 20 decisions per week or four per weekday.   These figures do not include regular hearings, nor time off for absences due to illness, training, or conferences.

Osuna echoed Wood’s position on the increasing backlog.

At the end of FY 2010, immigration courts had 262,622 unfinished court proceedings still pending.  This was a 40,000 increase over the amount of proceedings pending at the end of FY 2009.

The backlog continues to get longer.  In the first half of FY 2011, Osuna said, the pending unfinished caseload grew by an additional 9,400.

The Board of Immigration Appeals Overload

Osuna also highlighted similar problems with the Board of Immigration Appeals, the appellate body for immigration court decisions.

The BIA, he said, issued more than 33,000 decisions in FY 2010.  The BIA is composed of 15 Board Members.  This means 2,200 decisions per Board Member per year, or 183 per Board Member per month.

Or viewed another way, each appeal is decided within 55 minutes.

Again, my analysis assumes 100% work attendance.  It does not include coffee breaks.

Being an immigration appeals attorney, I know it’s impossible to adequately read the court transcripts, study the pleadings, motions, and evidence filed by the parties, and research the legal and factual issues under dispute in such a short time frame.

Over the years, in my role as a Riverside immigration lawyer, I’ve often wondered why many BIA opinions are low-quality, short decisions.  Some BIA decisions fail to discuss the main  issues.  Others address issues in a summary format.

Justice and fairness demand more time for contemplative thought, both at the immigration trials and immigration appeals levels.

The Impact Of Mass Incarcerations

Karen Griesez, the American Bar Association representative, addressed overcrowding from a different stance.

Griesez highlighted one of the major causes of the increased court dockets. The number of immigrants removed from the U.S., said Griesez, grew from 69, 680 in FY 1996 to 393,289 in FY 2009 – more than a 450% increase.

This is linked to an increase in filings of deportation cases by the Department of Homeland Security.

Immigration proceedings, as Osuna explained, begin when DHS files a formal charging document, called a Notice to Appear (NTA), with the immigration court.

According to Griesez, the number of NTAs issued by DHS to initiate deportation proceedings grew by 36% in just two years, from 213,887 in FY 2006 to 291,217 in FY 2008.

She added these numbers are expected to increase even more in the near future.

With DHS efforts to apprehend, detain, and remove immigrants through programs like the Secure Communities expanding, the work imposed on immigration courts will continue to grow

Justice Deferred, Due Process Denied

In the current political climate, spending money on improving the immigration court system is not a priority.

Yet, absent such funding, in a system where the caseload of immigration courts is directly tied to DHS enforcement activities, immigration courts cannot keep pace.

Without Congressional support, immigration courts are doomed to inefficiency.

And worse.

In a court system riddled with massive overload, can due process for immigrants truly exist?

By , Immigration Law, Policy, And Politics

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