February 10, 2009

ICE Arrests & Immigration Crackdown Overwhelms Immigration Judges & Courts

Immigration Crackdown Overwhelms Judges

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Illegal immigrants in detention center
Gregory Bull

A U.S. Border Patrol agent processes two men at a detention center in Nogales, Ariz., in April 2006. AP

“For some people, these are the equivalent of death penalty cases, and we are conducting these cases in a traffic court setting.”
Dana Leigh Marks, head of the National Association of Immigration Judges

All Things Considered, February 9, 2009 · Over the past few years, the Bush administration's immigration crackdown funded thousands more agents to arrest immigrants and hundreds more government lawyers to prosecute them.

But immigration judges — who adjudicate deportation and asylum hearings — have been left out of this expansion, and they say they're struggling under a staggering caseload.

Ballooning Backlogs

In fiscal year 2007, the nation's 214 immigration judges oversaw nearly 350,000 cases. Dana Leigh Marks, who heads the National Association of Immigration Judges, says she spends 36 hours a week on the bench trying to keep up, and Marks doesn't even have basic resources that other judges take for granted.

"I'm lucky," Marks says. "Here in San Francisco, I have one-quarter of a law clerk. Throughout the country, the ratio of law clerks to immigration judges makes it so that most judges have one-sixth of a law clerk."

Marks says she can definitely feel like Lucy Ricardo on the chocolate-factory line. But with many defendants seeking refuge from persecution, the frenetic work pace is hardly a comedy.

"For some people, these are the equivalent of death penalty cases, and we are conducting these cases in a traffic court setting."

Brittney Nystrom of the National Immigration Forum says the court system simply can't handle the number of cases pouring into it. She points out that immigration law is exceedingly complex and can demand knowledge of conditions in countries spanning the globe. Yet as the recent immigration crackdown has led to ballooning backlogs, judges have come under pressure to speed up decision-making.

"Judges may waive the testimony of a witness and choose to review a submitted statement," Nystrom says. "Or they may direct the applicant to focus on one side of their story instead of hearing all of the testimony."

One result has been a surge in appeals and scathing attacks by federal appeals judges, who've criticized immigration courts for inconsistent, sometimes illogical decision-making. In 2006, then-Attorney General Alberto Gonzales pledged to hire more immigration judges. That task falls to the Justice Department's Executive Office for Immigration Review. Officials there declined our interview request, but director Kevin Ohlson recently told Congress that during the past year, his office has hired 18 immigration judges, with 16 more in the pipeline.

But that effort hasn't even kept up with attrition. As of last fall, there were fewer immigration judges than when Gonzales ordered new hires.

Strategies To Manage Caseload

Along with the push for more judges, there are calls for other ways to bring down the backlog of cases. Julie Myers-Wood, who led Immigration and Customs Enforcement until recently, points out that because immigrants have no right to a lawyer in deportation cases, many represent themselves, which can lead to confusion and delays.

"Making sure that aliens know about what their rights are, making sure we're pushing to get pro bono counsel out there, I think could be the most positive thing for immigration courts that we could really see," she says.

Myers-Wood believes expanding pro bono help could improve due process and also lead many immigrants to give up their legal fights against deportation once they understand they have little chance of success.

She would also like to keep expanding a controversial program called stipulated removal, in which immigrants agree to be deported and bypass the courtroom altogether. Immigration lawyers complain that most immigrants who've signed such waivers did not consult a lawyer and may have had a defense against deportation without realizing it.

Marks of the immigration judge's union says no shortcut can overcome the need for more judges on the bench. She says a recent University of California study found overwhelmed immigration judges face stress levels equal to those faced by emergency room doctors and prison wardens.

"I think the immigration judges across the United States do an admirable job," Marks says. "But the lack of resources and the persistent inability to spend more time on cases is wearing me and my colleagues down."

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