The American Bar Association has released a report on the state of the country’s immigration courts. The report concludes the current system is “facing an existential crisis” because of the unprecedented backlog of cases (around 800,000) and says the entire system is “on the brink of collapse.” From the report’s executive summary:
The state of the U.S. immigration court system has worsened considerably since our 2010 Report… Crucially, the number of cases pending before the immigration courts (which were about 262,000 cases at the time of the 2010 Report) has increased to unprecedented levels. As of December 2018 there were more than 760,000 presently pending cases and an additional 330,000 cases that could be returned to active dockets in short order as a result of recent Attorney General decisions. Ballooning dockets have resulted in increasingly long wait times for cases to be heard…
The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.
The report notes that hiring of immigration judges has not kept up with the number of outstanding cases. Hiring has actually improved under the Trump administration but the report notes there is a concern the new approach will result in politicized hiring:
In April 2017, DOJ announced its plan to “streamline” hiring of immigration judges, estimating that the proposed changes would result in a hiring timeline of less than six months.70 DOJ began implementing this new approach as of February 2018.
While stakeholders broadly agree that improved, faster hiring practices are necessary, DOJ’s new approach has received criticism that it will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring. Indeed, there have been a resurgence in reports of overt politicized hiring of immigration judges by DOJ, leading Congressional Democrats to call for a formal investigation into DOJ’s hiring practices with respect to immigration judges and members of the BIA. While EOIR and DOJ deny these allegations, many commentators remained skeptical.
This concern stems from a lawsuit filed last year by Dorothea Lay. Lay sued after her job offer was rescinded by the Trump administration. She believes she was discriminated against because her application revealed she was pro-immigrant. From CNN:
Lay believes her resume and application would instantly come across as pro-immigrant — fair or not. She has spent decades working on asylum policy, especially the types of issues Sessions recently rolled back with a decision to not consider victims of domestic violence or gang-related crime eligible for asylum. Inside the government, USCIS is perceived as the most pro-immigrant of the immigration agencies, being the agency that bestows visas and citizenship on immigrants.
Her recommendations also came from academics and former Democratic political appointees.
Democrats led by Rep. Elijah Cummings have been involved in investigating claims of politicized hiring though the DOJ has denied that is the case.
In a letter exclusively obtained by Fox News, Justice Department Assistant Attorney General Stephen Boyd gave a line-by-line rebuttal, addressing concerns about 14 applicants who are no longer being considered.
“As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation,” Boyd wrote.
I’ll leave it to the lawyers to decide whether this proposal to remove the immigration courts out from under the DOJ is a good one but, apart from the specific solutions, it seems significant that the ABA believes something dramatic needs to be done avoid the collapse of the system.
As we’ve discussed here many times, the rise in asylum claims is part of a shift in the people arriving at the southern border. In the past, the majority were Mexicans looking for work. In the past few years, most migrants have come from Central America for a combination of reasons that include economic motivation and some with a genuine fear of being targeted by gangs back home. These migrants now routinely arrive at the border, cross illegally, and then turn themselves in to claim asylum. Many have learned that they will be released quickly if they travel with a child which is one reason the number of children arriving at the border has risen sharply.