Over the last ten years, funding for immigration courts has remained largely stagnant, even as funding for enforcement expanded. Previous administrations failed to request funding and the slow pace of hiring led to Congressional reluctance to allocate additional funds. Predictably, backlogs ballooned as year after year a steady flow of cases piled up on judges’ dockets.
Now the Trump Administration is pointing to these backlogs to justify denying immigrants access to court at all. Department of Homeland (DHS) Security Secretary John Kelly issued a memo this week on implementing President Trump’s executive orders of January 25th citing “historic backlogs” in immigration courts as a reason to expand summary removal proceedings, known as expedited removal.
While the administration’s description of the backlog problem is correct, its conclusion is unconscionably flawed.
The backlog has reached historic highs, with nearly 550,000 cases currently pending before just over 300 immigration judges nationwide, resulting in cases delayed for years. But the answer to this problem is simple: fund and hire enough immigration judges to fairly and timely adjudicate cases. Don’t deny immigrants due process by subjecting them to summary removal.
Using expedited removal—and certainly expanding it—is already highly problematic. A series of reports by the bipartisan U.S. Commission on International Religious Freedom, and others, have documented the failure of U.S. border officials to implement safeguards built into the summary removal system to protect asylum seekers from improper deportation. The proposed expanded use of expedited removal could grant ICE agents the authority to subject anyone in the interior of the United States, who cannot establish their continuous presence in the United States for the past two years, to summary removal. Turning ICE officers, in effect, into judge, jailer, and deporter.
The backlog has steadily grown since 2007 because immigration judges adjudicate cases in the patchwork of U.S. immigration law—one of the most complex areas of law in the United States.
Growing backlogs in the immigration court is far from a new issue, and is not due to a recent influx in cases. The number of new cases filed with the court each year has remained largely the same for the past ten years. The backlog has steadily grown since 2007 because immigration judges adjudicate cases in the patchwork of U.S. immigration law—one of the most complex areas of law in the United States. As immigration judge Dana Leigh Marks famously explained, it “amount[s] to death penalty cases heard in traffic court.”
For years, independent policy experts, bipartisan lawmakers, the assistant secretary for Immigration and Customs Enforcement under President George W. Bush, national and local editorial boards, former Attorney General Alberto Gonzalez, and human rights groups, among others, have called on Congress to provide funding to eliminate the backlog, ensure due process, and address delays that could undermine the integrity of the immigration removal system.
Last year Human Rights First’s report, “In the Balance,” documented the devastating impact of these delays on asylum seekers and their families, many of whom remain stranded abroad in immediate danger waiting for their family member’s case to be heard. We found that 524 immigration judges are required to eliminate the backlog and adjudicate all new cases within one year. Predictions in the report regarding growth of the backlog have proven accurate, suggesting that 524 immigration judges would still be able to efficiently eliminate the backlog and ensure timely hearings.
Rather than try and sidestep the courts, the administration should simply ask Congress for adequate funding to address the backlog, establishing an immigration system that would both hear the cases of those in need of protection and avoid concerns that some may use the long delays to avoid removal.
The mass deprivation of due process for asylum seekers is not the answer, and the administration’s suggestion that long court delays justify expedited removals calls into serious question its commitment to due process—a core American ideal.