We Need Immigration Courts That Work

By Russell Wheeler & Lenni Benson

As pressure mounts on Congress for some form of immigration legislation, a little-noticed and overworked cog in the nation’s immigration-enforcement machinery may get left by the wayside: the Justice Department’s 59 immigration courts, whose 260 judges adjudicate each year the cases of more than 300,000 people whom the Homeland Security Department wants to deport.

The courts are a mixed bag. Annual completions per judge average 1,495 but range from 521 in the Honolulu immigration court to almost 5,000 in a Houston court. The figure in 58 of the 59 courts exceeds the 538 terminations-per-judge figure in federal district courts.

The immigration courts are badly in need of help to achieve effective but fair enforcement of the nation’s immigration laws. The bipartisan comprehensive bill that the Senate approved in June (and a similar bill introduced by House Democrats) paid immigration courts some much-needed attention, but so far none of the pending House bills with much chance of serious consideration contain parallel provisions.


The pervasiveness of delay

The administration has put people into removal proceedings at a record pace. Times from initiation to completion have increased accordingly. The Transactional Records Access Clearinghouse reports that immigration cases wait on average 562 days for resolution, up from 430 days in 2009. Demands for more enforcement mean more removal proceedings and more delay.

Excessive delay increases detention costs. The government spends slightly more than $200 million on immigration courts but almost ten times that amount to detain some respondents awaiting hearings. The House’s 2014 Homeland Security appropriations bill would add over $150 million to that figure and continue to require DHS to detain at least 34,000 people per day.

Excessive delay degrades adjudication as memories fade. It prolongs the separation between immigrants who are eventually allowed to stay and their families. Worse, delay becomes a goal for some with no legitimate claim to legal status, because it lets them remain in the country for up to several years while their cases wait in the court queue.

The Senate immigration bill would reduce delay by authorizing 225 more immigration judges over three years, as well as additional staff -- one law clerk per judge rather than the three-to-one judge-clerk ratio in most courts now. In our survey of immigration judges, almost three-fourths said additional law clerks were one of the changes that would most improve their courts. The bill would also provide more continuing judicial education and better transcription and interpreting services -- all of this funded from the bill’s fee-fed “Comprehensive Immigration Reform Trust Fund.”


The paucity of legal representation

Intertwined with pervasive delay is the paucity of adequate legal representation for those in removal proceedings. Current law is clear: They may have lawyers but “at no cost to the government.” One major cause of delay is that judges often grant postponements to let respondents search for affordable lawyers or seek representation from overtaxed pro bono providers. Those who go it alone must navigate complex immigration laws and court procedures.

The representation rate for those in immigration-court removal proceedings crept up to 56 percent last year but is much lower for detained respondents in those proceedings. In some detention centers fewer than 12 percent of detainees ever get any form of legal advice. Both figures mask the low competence levels of some immigration attorneys.

The dearth of competent counsel has several consequences. For one thing, some detainees (who cost the government about $160 a day) press their cases when a lawyer could tell them they have no grounds for a favorable court ruling. And unrepresented respondents make court proceedings more difficult and time-consuming for government prosecutors -- and for immigration judges, neutral arbiters who must also protect pro se respondents’ basic due process rights. In our survey of immigration judges, 92 percent agreed that “when the respondent has a competent lawyer, I can conduct the adjudication more efficiently and quickly.”

Long delays, meager representation, and other resource shortages may contribute to arbitrary disparities in outcomes -- there is empirical evidence of disparities in asylum cases. Such disparities mean that courts deport some people who are entitled to protection and spare others who, by law, should be removed. That is an unfair and inefficient administration of immigration laws.

Some object to any government-funded legal assistance for those in removal proceedings -- and under current law, unlike criminal defendants, federal and state civil litigants have no right to government-provided counsel. But while immigration-court proceedings are technically civil, they look a lot like criminal proceedings; they include government prosecutors, the incarceration of some pending and during trial, and potentially life-threatening outcomes, including removal to a hostile country.

The Senate immigration bill takes modest steps to ensure representation for children and some vulnerable populations. It would also give statutory recognition to a small office created several years ago that arranges for non-profit groups to brief some new detainees about immigration-court procedures and to explain why fighting a removal order may not be legally viable.

Others are trying to fill the representation void. For example, a coalition founded by Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit in New York, which (like the western-state Ninth Circuit Court of Appeals) hears a disproportionate number of immigration appeals, devised a pilot project that the New York City Council agreed to fund at a local detention center. The council determined that the project will directly benefit New York families who suffer the collateral damage created by immigration detention.

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In short: there can be no effective and fair enforcement of our immigration laws if the immigration courts cannot keep up.

Russell Wheeler is a visiting fellow in the Brookings Institution’s Governance Studies Program and president of the Governance Institute. Lenni Benson is a professor of law and director of the Safe Passage Project at New York Law School.

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