THE BLOG
10/02/2014 02:40 pm ET Updated Dec 02, 2014

Immigration 'Court' Reform More About Justice Than Immigration

President Obama may have "delayed" his promise for major immigration reform to accommodate the politics of the Nov. 4 midterm elections, but there remains an opportunity for massive improvement to the immigration "court" system. The reason that such measures can gain consensus support is the same reason that "court" must be in quotation marks.

Can you recall that old history-class joke about the "Holy Roman Empire" being none of those three? Well, it turns out that the immigration court justice system has the same problem: Justice delayed is justice denied, so it denies justice; it is a system in only the most politically reactionary sense, and, perhaps most importantly, it's not even actually an independent court.

Instead, its judges are employees of the Justice Department and are forbidden from criticizing their employer. Case priorities have been overruled by politicians, and the backlog is about 400,000 cases -- some people literally wait years for their day in court. Those of us who paid attention in Civics 101 were surprised to discover that immigration courts are civil courts, not criminal courts, which reduces certain rights, like the right to an attorney even if you're poor.

It's a big issue, so let's overgeneralize: If Republicans want to hasten the deportation of anyone who has no right to be in this country, and if Democrats want to assure that everyone gets to make their case, then there's got to be consensus here, right?

On the right, U.S. Chief Justice John Roberts, a conservative, began the year by calling for increased court funding while wagging a finger at the GOP. USA Today's Richard Wolf writes, "[Roberts] noted that the Senate (controlled by Democrats) has approved even more money than the U.S. Judicial Conference has requested, while the House (ruled by Republicans) has come up with less."

On the left, the AFL-CIO affiliated union representing some 227 Justice Department field judges is calling for reform. At a recent National Press Club event, two judges broke their usual silence to illustrate what San Francisco-based judge Dana Leigh Marks called "a whirlwind tour of an alternative legal universe ... the 'Looking Glass' world of the nation's immigration courts."

The Houston Chronicle's Kevin Diaz reported that "with Congress at an impasse over President Barack Obama's emergency funding request, the judges also jumped into the fray over the due process rights of Central American children who have been flocking to the U.S. border, bogging down the system." Congress has since passed a budget that the Associated Press' Erica Werner reported "ignores the Obama administration's request to accelerate spending on immigration courts to handle the flood of unaccompanied minors at the border -- even as it boosts spending flexibility for Border Patrol agents and detention centers."

Over judicial protest and despite civil rights lawsuits, the "border kid" cases are being fast-tracked. Never mind that people already in line are moved away from their court dates. Resources are being pulled from all over the country.

A case in point: The Denver Post's Nancy Lofholm reports that immigration judges in Colorado's largest city "will be shifted away from the growing backlog of Colorado cases and will begin hearing video asylum cases next week for some of the more than 600 mothers with children and unaccompanied minors detained in Artesia [Texas]." And those cases were pulled not from Texas but from Virginia.

There is no doubt that President Obama, despite a history of back-tracking on the immigration issue when faced with political pressure, will include some immigration court relief in his post-election, executive-action "comprehensive reform." We can even hope he follows the judges' recommendation to overhaul the entire system.

Until then, Marielena Hincapié, director of the National Immigration Law Center, got it right when she praised the now-outgoing Justice Department chief Eric Holder for his civil rights record but added that "Holder (or his successor) still has some important unfinished business with regard to the country's immigration courts, which are overseen by the Justice Department and are overwhelmed with cases."

In other words, it's a "justice system" in name only.

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