Lawyers, Reorganization Better Solutions to Immigration Court Backlog

Last week, we wrote about the Trump Administration’s quotas for case clearance for immigration court judges. Since then, writers have highlighted the problem with quotas as a way to speed the process. The editorial board of the Los Angeles Times recently ticked off a number of issues with quotas as a solution that, combined, point to a better, fairer way to whittle down the backlog of cases.

The immigration courts—a branch of the Justice Department, not part of the independent judiciary—have been understaffed for years. Making matters worse, the pace of proceedings is slowed not only by sheer volume, but also by the absence of attorneys to steer clients through the process (immigrants facing civil deportation proceedings are not entitled to government-supplied lawyers, as they would be in criminal cases).

Other challenges include the difficulty in procuring and verifying documents from other (sometimes unstable) countries; and the time required to weigh evidence in complex cases, including requests for asylum. Judges and immigration lawyers have warned that speeding up the process could increase the number of appealable decisions because there would be legitimate questions over whether a decision to refuse to hear a witness as duplicative, or to not admit further evidence, is based not on the merits but on the fact that the judge is lagging behind in closing cases.

Lawyers could help the system move more efficiently because they have experience acquiring and managing the necessary evidence. They know how to get it, what constitutes valid evidence, and because they appear before immigration court judges regularly, they have an incentive to do a timely, professional job.

In an interview at NPR.com, Dana Leigh Marks, spokeswoman and president emeritus of the National Association of Immigration Judges, points out that one problem with the rush to clear cases is defining “completed case.” 

“There's a joke in the field that a case is not over until the respondent wins," Marks said. "Or the case is not over until the respondent leaves the country, because individuals can come back and move to reopen cases."

She too has ideas about how to address the backlog that don’t involve quotas. She says: 

The solution is simple: It's two steps. We need more resources, and we need them now. And we also need structural reform. Congress has recently taken a very important step to address the inadequacy of resources, by, just in the last budget cycle, providing money for 100 more immigration judges. That's the first step. But the necessary second step is to take the immigration courts out of the Department of Justice, where they're currently placed. And the reason for that is the mission of an independent and neutral court is incompatible with the role of a law enforcement agency. 

The issue has been studied. The concept of an independent immigration court has been endorsed by the American Bar Association, by the Federal Bar Association, by numerous other legal scholars and individuals who are knowledgeable with the system. And we believe that Congress could act on this very quickly—and that they should. Because if they don't, we're going to continue to have these kinds of conflicts and threats to judicial independence and due process.

The backlog of cases facing immigration courts is real, and if the administration is genuinely motivated by a desire to deal with it, there are better solutions that deal with the nature of immigration court than a blanket, arbitrary bar that judges must clear.

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