US Immigration Courts Struggle amid Understaffing, Backlog of Cases – Other Media news

The system is so damaged that judges, scholars and attorneys all share concerns about whether immigrants due in court will even receive notice before their hearings so they know to show up and aren’t ordered deported in absentia – an urgent concern made worse by volatile immigration policies at the US-Mexico border.

“It’s very worrisome. The fundamental requirement for a full and fair hearing is notice of your hearing and the ability to attend your hearing,” Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), said.

“I see incredible efforts being made by the staff – the bare-bones staff in some courts – to try to support these very, very heavy dockets,” she told the Guardian in an exclusive interview in her union leadership capacity. “But it’s extremely challenging for all of us to meet the demands.”

The US immigration court system has been imperiled by dysfunction for decades. Now it’s in crisis after serious setbacks under Donald Trump, and Joe Biden is struggling to right the ship.

On the line are millions of futures. Undocumented immigrants who fear being split from their American children and spouses, people facing persecution and death in their countries of origin, or those being sent to countries they haven’t seen in decades are all fighting for fair play and often literally their lives in courts ill-equipped to do them justice.

“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”

Chishti said he sees all the hallmarks of a strong administrative law system suffering in the nation’s immigration courts, which are housed under the Department of Justice in the executive branch of the federal government, not within the judicial branch.

“It is a system in crisis,” he said.

After Trump made hardline anti-immigration policies pivotal to his 2016 presidential campaign, he flooded courts with judges more inclined to order deportations, Reuters reported.

His administration hired so many new immigration judges so hastily that the American Bar Association warned of “under-qualified or potentially biased judges”, many of whom had no immigration experience.

And as officials such as then-attorney general Jeff Sessions made sweeping proclamations that “the vast majority of asylum claims are not valid”, judges simultaneously confronted performance metrics demanding they each race through at least 700 cases a year.

Yet in the roughly 70 US immigration courts across the country, judges are deciding complex cases with potentially lethal consequences.

People ranging from asylum seekers forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside end up appearing in court, often without attorneys to help them parse the country’s byzantine laws.

In a process smacking of a zip code lottery, one judge in New York may grant nearly 95% of asylum petitions while colleagues in Atlanta almost universally deny similar requests, creating a patchwork of standards.

Such inconsistency drives a high appeal rate and clogs the system, experts say. In addition, judges under the Trump administration lost much of their power to press pause on low-priority proceedings so that they could focus on more urgent cases.

Amid these bureaucratic logjams, the case backlog has ballooned out of control nationwide in a matter of years, from just over 516,000 cases in fiscal year 2016 to more than 1.6m today, according to data collected by Syracuse University’s Transactional Records Access Clearinghouse (Trac).

“Quarterly growth in the number of pending immigration court cases between October and December 2021 is the largest on record,” according to Trac.

Under Trump, “no progress was made”, said Jeremy McKinney, president-elect of the American Immigration Lawyers Association.

“As a matter of fact, there was significant and historic backtracking,” McKinney said, adding: “All the efforts of the prior administration did was create more litigation.”

Now, Tsankov urgently wants to confront the government with the problems, including the courts’ chronic, severe staffing shortages that can create serious obstacles to fair adjudications.

But amid a bitter, years-long campaign to decertify the NAIJ, the current administration under Biden is not meeting or even communicating with Tsankov’s union, she said.

“If the judges don’t have the staff to send out the hearing notices and to ensure that the cases are ready for proceeding, the mission of the agency isn’t really going to be successfully fulfilled,” Tsankov said.

Neither the courts’ crisis nor widespread frustration over the immigration system writ large are news to the Biden administration.

Kamala Harris last year acknowledged in an ABC interview that the US immigration system overall is “deeply broken”. But while the administration has ended many Trump immigration policies, some of the most inequitable remain, such as forcing migrants to wait in Mexico while their cases are processed in the US legal system and summarily expelling many with no access to court.

Advocates were also befuddled by the Biden administration’s early appointments to the immigration courts, who were overwhelmingly former prosecutors, immigration enforcement officials and military personnel, according to the Brennan Center for Justice. And while Biden ran on a platform to double the courts’ staffing and otherwise ease judges’ burden, critics say case numbers aren’t dropping as quickly as they should. In fact, the backlog grew by roughly 180,000 cases between fiscal years 2021 and 2022.

“When you’re running a court and you know that due process requires that parties have access to their hearings and that they’re aware of when their hearings are going to occur, just hiring more judges will not fix the problem,” Tsankov said.

Judges require legal assistants, judicial law clerks, interpreters and front-window staff – support roles that are critically under-filled in cities as geographically diverse as Philadelphia, Salt Lake City and Memphis, Tsankov said.

At one New York immigration court, for example, Tsankov said they were staffed at only about 30%.

Raw migration numbers – US Customs and Border Protection logged an all time record of 1.73m encounters with migrants at the US-Mexico border in fiscal year 2021, for example – don’t tell the whole story.

Apart from policy changes, demographics of those encountered at the border have evolved from men searching for work, who had little access to court, to those seeking asylum who often go in front of a judge.

And immigration enforcement became more closely linked with the criminal justice system in recent decades so that, for example, immigrants stopped for a traffic offense wound up fighting deportation.

These factors helped spin the immigration court case backlog out of control.

The result is bare-bones court teams scrambling to keep the system running, risking judges losing track of a case’s legal landscape over time and staff failing to update contact details for hearing notices.

This despite the fact that people can be ordered deported if they don’t show up for court.

It all adds up to courts “suffering from a lack of acceptability, affecting the integrity of the whole system”, Chishti said, adding: “People don’t have faith in it.”