Swamped Immigration Courts Are A Bi-Partisian Fix Opportunity

01/24/2017 03:00 pm ET Updated Feb 03, 2017

As a newly minted Donald J. Trump administration perhaps scans for bi-partisian issues, let me be among those suggesting that our immigration courts might be a great place to begin.

Some background: With a backlog of more than a half-million cases stretching over years, the immigration courts are nothing short of a national tragedy. Of course, they are not really federal "courts." Instead, they are part of the Justice Department and, despite some recent improvements, suffer from chronic understaffing issues. Remember those "border kids" showing up from Central America? They are part of the backup, despite getting expedited treatment from your predecessor, which BTW pushed those in line even further back.

What immigration court delays mean may depend on how you feel about immigration, and about people seeking asylum here in particular.

Perhaps you feel like having three or four years before a court date might delay legal status for people who have a case for staying in the United States. However, others no doubt feel like that's a lot of time for those with no business being here. Both might agree that leaving the decision in limbo for years is just wrong.

Either side of the immigration perspective can agree that we need to fix the courts.

No doubt the administration probably does not need to go as far as the immigration judges would like. For example, writing at CNN, the president of the union representing those judges called for an independent tribunal. Judge Dana Leigh Marks also noted that our nation's 58 immigration courts have "... cases [that] include what amount to death penalty cases heard in traffic court settings."

Here's a handy tool to track the immigration court backlog by local jurisdictions, nationality and how long the waits have become. I should caution you that it's a bit depressing.

The situation is bad enough to border on Kafkaesque, including an actual judge arguing that toddlers can learn immigration law and represent themselves. The Washington Post was among those reporting comments from Jack H. Weil, a "longtime immigration judge" and senior Justice Department official who is actually responsible for training other judges.

“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil said. “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”

Goodness knows there are many issues if you decide to drain the immigration court swamp.

For example, the Obama Administration's policy of family detention of families awaiting their day in court. Following the 2014 crisis of unaccompanied children showing up at the U.S. border seeking asylum, along with what amounted to family migration, the Obama administration expanded family detention.

As Elise Foley and Roque Pianas wrote in HuffPo, that was "... a policy it [the administration] had all but abandoned shortly after President Barack Obama took office ― to act as a disincentive to the tens of thousands of Central American families crossing into the United States since the summer of 2014. These families routinely apply for asylum or other forms of humanitarian relief. But given immigration court backlogs, they can be stuck for months in detention centers."

One problem they noted in the report is that "... U.S. District Judge Dolly Gee ruled that the family detention policy violated a 1997 court settlement requiring that undocumented children be housed in the least restrictive setting possible and generally favoring their release from detention. In response, the Texas Department of Family and Protective Services issued new rules defining “child care facility” to make it possible for the two detention centers to qualify.

I've dubbed the unaccompanied minors "border kids" and I'd note that we tend to think of them along with other potential immigrants. I think there's a difference, especially among those who showed up at the border, turned themselves over to border officials and sought asylum. The New York Times reported that "... unaccompanied minors have been placed with sponsors, usually parents or relatives. They remain there while their cases are being processed. The majority of the children are in states where immigrants have traditionally settled, like Texas, New York, California and Florida. A large number have also been sent to Maryland, Virginia, Georgia and Louisiana." Where from, the NYT explains that "... more than three-quarters of the children minors are from mostly poor and violent towns in three countries: El Salvador, Guatemala and Honduras. Children from Mexico, once the largest group, now make up less than a quarter of the total. A small number come from 43 other countries."

It seems clear that former Alabama Sen. Jeff Sessions will be handling the Justice Department. If he follows up on the immigration campaign goals, the new AG is going to discover that his own immigration courts are hopelessly unable to meet those goals. President Trump famously noted that without legal borders we have no country; I'd submit that without effective immigration courts, we cannot claim legal borders.

Infrastructure is not just roads and bridges and such. It's also the carrying capacity of our legal system. It turns out ours is swamped.

Sara Corcoran Warner is publisher of the National Courts Monitor website, “Your Daily Ration of Civil Justice Rationing,” and a frequent commentator on national legal policy and civil courts issues.

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