Advertisement

SKIP ADVERTISEMENT

Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle

Berfalia Martínez is in deportation proceedings and applying for asylum, but somehow her children, 3 years old and 4 months old, have ended up with separate deportation cases open in the Arlington, Va., immigration court. At a recent hearing for the 4-month-old, Damián, the judge could only urge her to make sure Damián “presents himself in all of his future hearings.”Credit...Lexey Swall for The New York Times

ARLINGTON, Va. — Walk into the immigration court here, and scenes of a justice system in collapse abound.

In the overflowing courtrooms, one judge raced through hearings, opening 85 cases on a recent day, and several others were not far behind.

The judge in Courtroom 2 had unsettling news for Edhite Pouken Shienji, a woman from Cameroon seeking asylum. After 14 years of delays, she was finally scheduled for a hearing. But at the last minute, the judge was reassigned to handle the cases of some migrants from Central America. Her hearing was postponed once again — to 2019.

In Courtroom 8, there was a deportation hearing for Damián Martínez, from Mexico. The judge soon discovered he was a 4-month-old infant, dozing on the shoulder of his mother. Somehow the baby’s case had become separated in court records from hers. The bewildered mother, in court without a lawyer, had no clue how to fix the problem.

The judge could only urge her to make sure that Damián “presents himself in all of his future hearings.”

Weighed down by a backlog of more than 520,000 cases, the United States immigration courts are foundering, increasingly failing to deliver timely, fair decisions to people fighting deportation or asking for refuge, according to interviews with lawyers, judges and government officials. With too few judges, overworked clerks and an antiquated docket based on stacks of paper files, many of the 56 courts nationwide have become crippled by delays and bureaucratic breakdowns.

The courts will be a major obstacle for President-elect Donald J. Trump and his plans to deport as many as three million immigrants he says have criminal records. Many of those deportations — at least hundreds of thousands — would have to be approved by immigration judges.

Mr. Trump has also said he intends to freeze federal hiring, which would prevent the courts from bringing on new judges and clerks, who are federal employees. Without significant new resources, the courts would probably slow Mr. Trump’s deportations to a stall.

On a visit to the immigration court in Denver four years ago, cases were moving briskly, but judges were starting to worry because hearing delays were reaching 18 months. Now in Denver, the court with the longest wait times in the country, most cases drag on more than five years, the Transactional Records Access Clearinghouse, a research group studying federal data, has found. In Arlington, by reputation one of the nation’s best-run courts, eight judges have more than 30,000 cases, with some scheduling hearings in 2022.

“The system has been failing, but now it is reaching a tipping point,” said Benjamin Johnson, the executive director of the American Immigration Lawyers Association.

Unlike other federal courts, which are part of the judiciary, immigration courts are run by the Justice Department, making them subject to shifting political priorities in Washington.

The backlog started building years ago, as President Obama stepped up immigration enforcement while Congress clamped down on spending. A hiring freeze at the Justice Department under the budget sequester from 2011 to 2014 exacerbated the problem.

In the past two years, the administration won increases for the courts from Congress, and the number of immigration judges rose by 65 to about 300 today. But the hiring of judges is glacially slow. With each judge completing an average of 750 cases a year, the courts would need at least 520 judges to eliminate the backlog within one year, according to an analysis by Human Rights First, a watchdog group in New York.

The worst crunch was created by the Obama administration after families from Central America surged across the southwest border in 2014 and again this year. In late 2014, justice officials ordered the courts to rush asylum claims of Central American parents and children to the front of their dockets, pushing other cases back. Officials hoped migrants who were denied would be deported quickly, sending a message to others in Central America to stay home.

Judge Paul W. Schmidt observed the effect of this edict from his bench in an austere Arlington courtroom.

“It’s total chaos,” he said in an interview, after retiring from the immigration bench in June after nearly two decades.

Mr. Schmidt was given cases that were not priorities. Before long, his docket was piled with more than 10,000 cases. The only dates open on his hearing calendar were six years away.

Mr. Schmidt recalled the shock on the faces of those before him when he announced the distant date when they could expect a decision.

“It becomes clear to people these are just imaginary dates,” he said. “That robs the judges of credibility. The court as a whole loses credibility.”

Image
Paul W. Schmidt recently retired as an immigration judge in Arlington, Va. The yearslong wait for hearings “robs the judges of credibility,” he said. “The court as a whole loses credibility.”Credit...Lexey Swall for The New York Times

The administration’s fast-track plan did not succeed, Justice Department officials acknowledge. Across the country, more than 161,000 cases of parents and children from Central America have been opened since 2014, but so far judges have finished only about 67,000 — or about 40 percent — of them, according to records. Other cases are inching forward as migrants fearing for their safety press their arguments for protection.

In nearly 41,000 of the cases completed, judges ruled against immigrants and ordered them deported, the records show. But in practice, with enforcement agents under instructions from the administration to focus on deporting dangerous criminals, few deportations of families from Central America, who mostly do not have criminal records, have been carried out.

“The system is there to provide due process. It isn’t there to send enforcement messages,” Mr. Schmidt said.

Mr. Trump has said he will choose as his nominee for attorney general Senator Jeff Sessions, Republican of Alabama, a vigorous proponent of strong immigration enforcement. With broad powers over the immigration courts, Mr. Sessions could appoint tough judges and change procedures so the system in the future would move faster and be more restrictive.

Mr. Sessions could cancel the appointments of roughly 75 new judges selected by Attorney General Loretta Lynch to choose judges to his liking. But it might be a year or longer before they took the bench. And Mr. Sessions would not have authority to summarily reduce the backlogs, lawyers said.

As the backlogs grow, they create new problems. People who come to the courts with urgent stories of terrifying dangers that drove them from their homes find they cannot be heard for years. Circumstances change, evidence grows old, witnesses move on. Cases get scrambled or misplaced.

When Reina Rojas de Ayala first filed for asylum in Arlington in 2012, she had a strong argument that she would be in grave danger if she was forced to return to El Salvador. By the time she had a hearing four years later, her legal case was diminished even though the perils at home were not.

Ms. Ayala, 43, lived in Virginia with her Salvadoran husband, a legal immigrant. But she was undocumented, and in 2009 she went to El Salvador to try to obtain papers to return legally, taking two children born in the United States.

The danger came from one of her older sons in El Salvador, Samuel Ayala, now 26. He demanded money, saying he needed to pay dues to a criminal gang.

“He was violent, telling me he had to have the cash,” Ms. Ayala said. “I told him to get a job. Many times he shoved me down and hit me.” Fearing he would kill her, she sent her American children to Virginia by plane while she went to the border to request asylum.

Over time, the gang turned on Mr. Ayala, threatening the whole family. He fled to the United States, making peace with his mother. But her legal case, based on his threats, unraveled.

At her hearing, the judge denied asylum but agreed to dismiss her deportation. She is in immigration limbo, allowed to remain with her family but uncertain for how long.

Many foreigners cannot afford to pay for lawyers indefinitely, and in a court system where there is no right to government-paid counsel, volunteers are reluctant to take cases that could last for years.

Among those who need a lawyer is a woman who crossed the border in August 2014, after hiding for months in her own darkened house in a Salvadoran mountain village to protect her family from a gang. When she could not pay the $6,000 they demanded, she said, they went to her daughter’s high school, dragged her into the street and beat her unconscious.

“I saw her blood,” said the woman, 36, who asked that she be identified by only her initials, Z.A., which are used on her court docket. Still fearful after two years in Virginia, in her small apartment she keeps the lights low and the curtains drawn.

The daughter had scars from the beating, which persuaded a judge to grant her asylum in January. Z.A. should have won as well, but the government lost track of her case. It took a lawyer to recover it, but Z.A.’s case will begin moving forward only at a hearing next May.

“This case could be done in 10 minutes,” said the lawyer, Christina Wilkes. “But the court is so overwhelmed, no one can look at it.”

There are some benefits for people stalled in the courts, as immigrants can stay legally in the United States and many receive work permits while their cases wind through the system.

But for asylum seekers, endless waiting can be agonizing. Until they are approved, they cannot help spouses and children escape the same dangers that caused them to run.

Another immigrant fled Ethiopia in 2012, one step ahead of government officials coming to jail him. An Arlington judge set the hearing to decide in his case in May 2019. His wife and two young sons, still in Ethiopia, have been continuously harassed.

“My kids are suffering because of me,” said the man, who requested that he be identified by only the initials on his case file, S.Y. “I used to call them two times a day. But now I stopped because I feel like I am lying to them. I used to be sociable, but now I don’t even know who I am. I just sit in my house alone.”

A correction was made on 
Dec. 7, 2016

An article on Friday about overcrowded immigration courts misstated part of the name of a legal organization. It is the American Immigration Lawyers Association (not National).

How we handle corrections

Julia Preston, the national immigration correspondent since 2008, ended her 22-year career at The New York Times on Dec. 1. She can be reached on Twitter @JuliaPrestonNYT.

A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: Immigration Courts Buckling Under Huge Backlog of Cases. Order Reprints | Today’s Paper | Subscribe

Advertisement

SKIP ADVERTISEMENT