Despite more judges, immigration courts backlog grows to record high

Border Patrol agents arrest a border-crosser in June near a medical aid camp in the desert near Arivaca. While such cases are typically dispensed with quickly, new numbers show the backlog for other pending immigration cases has reached record levels, and sparked record delays. (Photo courtesy Customs and Border Protection)

WASHINGTON – Immigration court cases waiting to be heard hit an all-time high of 607,755 in June – 10,031 of them in Arizona – despite the hiring of more judges and a Trump administration directive to expedite cases.

Immigration lawyers and advocates said they expect the backlog, which began in the early 2000s, will only continue grow as the current administration’s crackdown on immigrants gains steam.

“It’s a combination of the lack of resources and immigration judges, along with the increased emphasis on deportation and removal that’s continued to increase over the last several years,” said Tucson immigration lawyer Mo Goldman.

The backlog is based on the most-recent numbers from the Executive Office of Immigration Review. It has led to delays of 672 days on average in the U.S. for immigration cases to be heard, according to a review of the EOIR data by the Transactional Records Access Clearinghouse.

The delay was higher in Arizona, where people waited an average of 682 days for a hearing. And defendants in the Phoenix court had the sixth-longest wait time in the nation, with an average of 813 days to get a hearing, according to TRAC.

Those were the averages: TRAC noted that some defendants are not scheduled to have hearings until after President Donald Trump’s first term is over.

Trump in a January executive order called on the attorney general to “allocate all legally available resources to immediately assign immigration judges to immigration detention facilities,” and ordered the hiring of 75 new immigration judges. Forty-five of those judges had been sworn in as of last month, but Goldman said they are no match for growing caseload.

“You’re looking at this situation where the number of judges is just being eclipsed by hundreds of thousands of cases,” he said.

Rep. Raul Grijalva, D-Tucson, said more needs to be done, but that hiring more judges is critical, otherwise “cases are going to get more and more delayed.”

“You can’t do one thing and say, ‘Enforcement only,’ and then not provide the resources for the judicial branch to be able to carry out what every person in America has – they have the right to a jury trial,” Grijalva said.

Of the current 325 immigration judges in the United States, 14 are in Arizona.

Editor’s note:

An earlier version of this story gave the wrong title for Ruben Reyes. He is immediate past chair of the Arizona chapter of the American Immigration Lawyers Association. The story here has been corrected, but clients who used previous versions are asked to run the correction found here.

But Ruben Reyes, immediate past chair of the Arizona chapter of the American Immigration Lawyers Association, said hiring is only a Band-Aid for a gaping wound.

“If you were to be reasonable – or at least allow for a humanitarian viewpoint on this process – it’s difficult to talk about the backlog and not also mention comprehensive immigration reform,” Reyes said.

While the backlog nearly tripled under President Barack Obama – dubbed “deporter-in-chief” by some advocates – Reyes said there has been a significant increase under the Trump administration, which is reopening low-priority cases that were closed under previous administrations.

Under Obama, low-risk, low-priority cases involving non-criminal immigrants who had roots in the U.S. were often set aside – or administratively closed – so prosecutors could focus on more high-risk cases involving criminal immigrants.

“Prioritizing those cases was a real way of dealing with the system’s ability to deal with, manage, the caseload, provided the limited resources,” Reyes said.

But the Trump administration has started reopening those cases, Reyes said. EOIR could not immediately confirm that cases are being reopened, but a Reuters report in June said it had EOIR data that showed 780 motions in May to recalendar cases that had been administratively closed, compared to 139 such motions last May.

One critic, however, said the reason the backlog exists in the first place is because immigrants are “tying the court up in knots” with appeals in deportation cases where they may not have a “legitimate claim” to be in the U.S.

“The biggest problem is that you have many layers of appeal built into the system and it needs to be streamlined,” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform.

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“The process needs to be expedited. People can get a fair hearing on their claims, but if there is an unfavorable verdict, at some point it needs to be honored” and the defendant deported, he said.

Although the January executive order called on judges to “expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States,” the number of cases closed by immigration courts actually fell 9.3 percent since Trump took office. TRAC data showed that 77,084 cases were closed from February to June, down from 84,956 cases over the same period last year.

Mehlman said there are instances, like requests for political asylum, where appeals may be plausible, but making “appeal after appeal” is just a method to gain a foothold in the U.S.

“Simply the fact that, ‘I’ve been here for five years and I have kids in school or a job,’ or whatever – that is not a legitimate claim,” Mehlman said.

But Grijalva said that ignores the human element of the backlog.

“When somebody’s being deported, doesn’t have a criminal record – has a civil record of not having documents – but has been here 15 years, is a parent, they’re going to try every avenue to stay with their families,” Grijalva said.

Besides, he said, cutting court times would deny migrants due process.

“As long as we have the Constitution in place and we have a right to a trial, some people are going to demand a trial,” Grijalva said. “Whether they are documented or not, that’s a right.”

Reyes and Goldman said that perhaps the only way to really solve the backlog is through comprehensive immigration reform. Reyes said the Trump administration faces a “long, hard slog” if it tries to expedite removals as a way to solve the backlog, explaining it’s the job of attorneys like him to “fight and to represent our clients vigorously.”

“This system, unless it wants to become this all-consuming agency for federal dollars, time and attention, it’s not going to get to it,” Reyes said.