Immigration court delays make a mockery of U.S. justice

Francis Riviera

Amidst the partisan divide on immigration one thing should be common sense for both parties: hire more immigration judges. More judges should make conservatives happy because quicker case processing results in quicker deportations for those who should be deported. The “de facto amnesty”, as Rep. John Ratcliffe (R-Texas) calls the excessive delay in hearing cases, would be eliminated. Liberals should be happy too because quicker case processing ensures that people who have the legal right to remain in the U.S., such as those truly needing protection in the U.S. and qualifying under our laws, can conclude their cases and begin their new lives here in the U.S. It is incumbent on both political parties to ensure that due process is not delayed and the rule of law is upheld.

In numbers just released, the backlog in immigration courts has now risen above half a million cases (500,051). Immigrants wait an average of 672 days for resolution of their cases, and for some cases the wait can reach up to six years. The highest number of pending cases are in California (93,466 cases), Texas (87,088 cases), and New York (86,834 cases).

{mosads}In Texas, where my NGO RAICES serves the immigrant community, the average wait for resolution of a case is 712 days. The San Antonio court is setting hundreds, if not thousands, of cases for Nov. 29, 2019 as a place holder until the court can find a date, likely on an even later day. And this is just to start proceedings, not to determine the merits of the case.

Delaying a hearing for so long presents several serious problems. One problem is the loss of evidence, including the disappearance or death of witnesses, not to mention the blurring effect of time on memory, making it all that much more difficult for judges to reach an accurate result. This neither benefits the immigrant nor society. The President of the National Association of Immigration Judges, Judge Dana Leigh Marks, states that when so much time has gone by it becomes “a more time consuming job”. So, in a purely financial sense, not resolving the backlog of cases also literally costs U.S. taxpayers.

Under the 6th Amendment to the U.S. Constitution, the right to due process includes the right to a speedy trial in criminal cases. While immigration proceedings are not considered to be criminal, the 6th Amendment still offers strong guidance on due process requirements in a civil setting. At the end of the day, as the maxim goes, justice delayed is justice denied.

When the procedural due process right to a speedy trial is denied, substantive rights are also denied. Delaying case resolution for years forces people to live in limbo, creating unnecessary anxiety and, for those who qualify for asylum, preventing access to medical care, social integration services such as English classes, and reunification with immediate family members (who themselves may be in need of protection). Where case processing delays prevent asylees from accessing the basic resettlement benefits they are entitled to under the U.N. Convention relating to the Status of Refugees, the U.S. is furthermore in possible contravention of our international treaty obligations.

Congress has made some effort to address the courts’ backlog, providing funding for 378 judge teams (judges with assistant support). 15 new judges were sworn into office in June, bringing the total to 273 judges in 58 immigration courts, and the Executive Office for Immigration Review is in the process of hiring more. However, Judge Dana Leigh Marks said that about 100 judges are expected to retire in 2016 and that the size of the courts should be at least doubled, and maybe tripled. The House of Representatives has proposed funding 25 new judges and Senate Minority Leader Harry Reid’s Secure the Northern Triangle Act proposes funding 165 new judges over the next three fiscal years. Human Rights First states that with the 524 judge teams it estimates are needed to address the backlog, the total cost of the immigration courts would be just over 4% of the overall $18.5 billion immigration enforcement budget. This is hardly a lot considering the significant benefits to quicker case processing.

Both political parties should agree that a top priority for border control and humanitarian funding should be to invest in more immigration judges. It is only common sense.

Sara Ramey is an immigration attorney at the San Antonio based NGO RAICES, where she represents asylum seekers before the Immigration Court, the Board of Immigration Appeals, and the Court of Appeals for the Fifth Circuit. 

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