The longest running government shutdown in history has brought increased attention to our nation’s immigration court system and the impact of the shutdown on the ever increasing backlog, currently at 800,000 cases and growing daily during the shutdown.
Yet most people are unaware of the primary factor underlying our current morass—that the immigration court is located within the Department of Justice, headed by the U.S. Attorney General, the nation’s chief federal prosecutor. Thus, the immigration court system fails to meet the most fundamental concept of our American judicial principles—that courts must be independent and neutral, free from interference and influence of the prosecutor or any party before it.
The federal courts in the judicial branch have not had to shut their doors (yet) because they are independent of the executive branch and largely have their own funding source.
With the nation’s renewed interest in everything immigration, there has been uniform dismay at the unacceptable case backlogs and the recognition of a crucial need for more funding for the court.
But funding increases alone will not solve the persistent problems of backlogs, as the dysfunction of the court stems from its structural defect of placement within the DOJ. The immigration court has consistently been hampered in achieving its mission due to the DOJ’s use of the court as a law enforcement tool.
Ignoring the immigration judge’s role as neutral adjudicators has led to larger backlogs, while compromising the court’s integrity and reputation.
One example is the incessant docket shuffling in furtherance of the latest law enforcement priorities. The Obama administration had the “surge” dockets, which placed the newest cases of “adults with children” or “unaccompanied children” immigrants at the top of the court’s docket, essentially line-cutting. Thousands of pending cases were delayed to accommodate new arrivals solely to serve political optics, in the hope that this tactic would discourage illegal entrants.
The Trump administration has continued and amplified these prosecutorial priorities through its declaration that everything is a priority, but some priorities or more priority than others, such as the temporary transfer of more than 100 judges to “border courts” as a show of force or rebranding the previous administration’s “adults with children” dockets as the new “family unit” docket but with completion deadlines.
These actions usurp the role of judges who are the experts at case management and adjudication and cast doubt on the neutrality of the rulings made.
Compounding this problem is the administration’s unprecedented decision to subject immigration judges to numerical completion quotas and deadlines as a precondition to keeping their jobs, something you may do to a prosecutor but not a judge.
This action prompted an outcry from legal scholars and bar associations across the nation. Now judges have to spend precious time keeping track of their rulings and daily activities to protect their jobs, instead of focusing their time and attention on the cases before them.
Although in the last two years we have seen the largest growth in the immigration court (from under 300 judges to more than 400 judges), our backlog of cases has continued to grow from more than 600,000 to more than 800,000 cases. And then, just when we thought things could not worsen, the shutdown happened.
Disruption Is Staggering
The disruption caused by the shutdown is staggering. To date, more than 80,000 hearings have been canceled, and by the end of January (if the shutdown continues), the number will rise at a rate of more than 20,000 a week.
No one is getting paid, regardless of whether they are deemed essential and working or are furloughed and prohibited from working as one cannot “volunteer” for government work. More than three-quarters (or about 300) of our judges have been shut out of their courts.
Only the cases of those individuals who are held in immigration detention are proceeding as previously scheduled. But those cases are less than 10 percent of the total 810,000 pending case backlog. The judges who handle our “non-detained” dockets routinely carry anywhere from 2,500 to 5,000 or more cases on their calendars, which translates to being in court every day, morning and afternoon, with schedules that are booked two, three, or more years in advance.
Contrary to what some may imagine, once the shutdown is over, the pending backlog of 800,000 cases will not just get shifted in unison to a later date to accommodate the missed hearings. It is a logistical impossibility to reschedule 800,000 cases.
Instead, the cases that were postponed (particularly those set for trial) will likely be placed at the back of the line, resulting in delays of two, three, or more years before the individual’s day in court.
The potential lengthy delays caused by the shutdown can be devastating for the parties before the court. Individuals with strong asylum claims can see their claims seriously compromised as memories fade and witnesses become unavailable. Others may see the entire basis for their claim disappear when their qualifying relatives, such as U.S. citizen children, age out to become adults or parents and spouses pass away.
The only true winners of the shutdown are individuals who have weak immigration claims and would welcome the opportunity for additional time in the U.S., a cruel irony.
The federal courts in the judicial branch have not had to shut their doors because they are independent of the executive branch and largely have their own funding source. The immigration court needs the same status. The only lasting and just solution to both the backlog and the integrity of our court system is to remove the court from the DOJ and make it an independent court.
Ashley Tabaddor speaks in her capacity as the president of the National Association of Immigration Judges. She is also a sitting Immigration Judge in Los Angeles and an adjunct professor at UCLA School of Law.