"These are death penalty cases being handled with the resources of traffic court," one Immigration Court judge told Chicago Appleseed, in an interview for a 2009 report.
A recent two-part Associated Press report on immigration court also captured the system's stunning dysfunction: a "massive crisis" in which judges, immigrants, lawyers, and reformers alike are overwhelmed, exhausted, frustrated, and fed up. American taxpayers should be fed up, too.
Immigration court is a subset of the Executive Office for Immigration Review (EOIR), whose primary aim is to decide whether to remove or grant residence to immigrants who are charged by the Department of Homeland Security (DHS) with violating immigration law.
Some are children who have been smuggled in without parents, some have entered the country illegally, some have entered legally but overstayed their visas or committed crimes, and a great many are seeking asylum -- ie, protection from persecution in their home country.
Under current DHS rules, each one must go through the exact same, agonizingly slow, legal process. Immigration Court judges hear each case and determine who stays and who goes, often with very little evidence to inform their decisions. With a staggering backlog of 268,000 unresolved cases, it's safe to say that the process doesn't work.
In 2009, Appleseed, in cooperation with Chicago Appleseed Fund for Justice, conducted over 100 interviews with key practitioners in the immigration court system, as well as over 100 hours of court watching. The resulting report, "Assembly Line Injustice," identified numerous issues, many of which are reflected in the recent AP story, but also several concrete suggestions. Among them: increase staff, appoint nonpolitical judges, implement a type of "triage" through pre-trial conferencing, and provide immigrants access to their court records without a FOIA request.
Drawing largely on the Assembly Line Injustice report, Appleseed submitted written testimony (pdf) to the Senate Judiciary Committee to inform the Committee's hearing, "Improving Efficiency and Ensuring Justice in the Immigration Court System."
Immigration is an emotional subject in America. At a time when nearly one in six working-age adults is unemployed or underemployed, there seems little reason to devote dollars to a better immigration system. However, the broken immigration court not only fails to let people in; it also fails to get people out.
It may take years for a persecuted individual to be granted asylum, as was the case of one mother from Cameroon who was granted asylum after five years of legal efforts. Her children endured starvation and disease while she sought asylum from the country that beat and jailed her for political organizing. This mother's experience, which is not atypical of asylum cases, is an affront to American ideals.
Deporting criminals and others residing in America illegally also involves a lengthy, expensive process. Before being deported, immigrants are detained, often for weeks or months, at a cost of $200 per day -- and a total cost of $2.4 billion per year.
One simple way to address the backlog is through a pre-trial conference system, similar to the kind used in criminal courts. In criminal courts, the vast majority of cases are resolved without going to trial; otherwise, the courts could not function. Pre-trial conferences could be used to negotiate and dispense with the easier cases, and identify the more challenging cases that should be forwarded to a judge.
"No matter what the situation is, every case is basically given the same level of scrutiny and the same level of resources," says Malcolm Rich, Executive Director of Chicago Appleseed. "It's not an efficient way of running a court system. If you had that in the state and federal courts, they would grind to a halt. It ends up being unfair to some people and doesn't serve the public interest."
A huge case backlog leads not only to delays, but also to mistakes. Mistaken judgments are frequently appealed, and those appeals often end up on the desk of already busy federal appellate judges.
In one remarkable opinion (pdf) addressing this issue, Federal Appellate Judge Posner, one of the most cited judges in the US, summarized the problem of poor decision-making in the lower courts, writing, "All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts..."
The immigration court system is an integral part of the American justice system. No matter your views on immigration policy, these courts need to be fair, efficient, and effective. There are some relatively inexpensive ways to improve these courts that will yield millions of dollars in savings while increasing due process protections. Given our national interest in saving funds while improving the immigration system, these changes should be implemented now.
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