Report

Trump’s Border Surge Set to Collide With Overloaded Courts

Plans to shrink the undocumented immigrant population are missing a crucial ingredient: enough judges to process the cases.

NOGALES, AZ -  MAY 14:  A steel wall separates Nogales, Sonora, Mexico (L) from a U.S. Border Patrol agent in his sector May 14, 2006 in Nogales, Arizona. U.S. President George W. Bush will address the nation on the immigration issue May 15.  (Photo by Jeff Topping/Getty Images)
NOGALES, AZ - MAY 14: A steel wall separates Nogales, Sonora, Mexico (L) from a U.S. Border Patrol agent in his sector May 14, 2006 in Nogales, Arizona. U.S. President George W. Bush will address the nation on the immigration issue May 15. (Photo by Jeff Topping/Getty Images)

The Trump administration’s plans to fast-track the deportation of millions of undocumented immigrants is running up against a stubborn obstacle: the huge backlog of immigration and asylum cases in U.S. courts.

As of January 2017, immigration courts were jammed with a record 542,411 cases, according to Transactional Records Access Clearinghouse, a data gathering organization at Syracuse University. The group estimates it would take two and half years just to clear the current caseload, a legacy of the Obama administration.

That backlog is now set to grow dramatically as federal agencies gear up to hire thousands more Border Patrol and enforcement agents to comply with President Donald Trump’s Jan. 25 executive order.  The order greatly expands law enforcement agents’ power to apprehend and detain undocumented immigrants, and keep them in detention until a judge decides if they are eligible for asylum or can be deported.

Piling more cases onto overloaded courts won’t help the administration achieve the goal of shrinking the undocumented immigrant population, several current and former federal officials said. Instead, it could produce a huge surge in asylum seekers stuck in detention on the taxpayers’ dime for years.

“I think it’s not necessary — if anything it’s probably counterproductive,” Stephen Legomsky, former senior counsel to the Secretary of Homeland Security and U.S. Citizenship and Immigration Services under President Barack Obama, said. He recommended increased funding be focused on the court system.

Even people who enter the country illegally are entitled to apply for asylum — and many have legitimate claims, he said. But faced with deportation, many more people will choose to express “credible fear” that they have safety concerns in their country, and try to go through the asylum process. With more law enforcement agents searching for and detaining undocumented people, the number of cases will only climb, threatening to create a huge long-term detention population.

“Nothing in these executive orders will address the backlog or incentive to file for asylum in the United States, even without a valid claim,” a Department of Homeland Security employee told Foreign Policy, on condition of anonymity.

The strain on the immigration court system has been building for years. Between 2002 and 2013, there was a 300 percent increase in funding for immigration enforcement, but only a 70 percent increase for immigration courts, according to the Migration Policy Institute, a nonpartisan think tank.

So far, Trump has also focused on immigration enforcement rather than the court system. Plans to achieved Trump’s goal of 5,000 additional Border Patrol agents and 10,000 Immigration and Customs Enforcement agents, mandated in his Jan. 25 executive order, are already racing ahead.

Last month, DHS Secretary John Kelly directed federal agencies to begin hiring to match Trump’s mandate, subject to resources. Meanwhile, Customs and Border Patrol has advised relaxing hiring requirements in order to speed up the process, and estimated it could take five years and cost about $2.2 billion to help fill out CBP’s ranks.

The Department of Justice has said it plans to deploy 50 judges to the border to deal with an expected increase in proceedings to quickly deport people. But these judges will be chosen from the existing pool of 300 immigration judges already struggling under a heavy caseload, and doesn’t represent any new hirings. The department needs 224 additional judges to reduce the backlog and handle incoming cases, the nonprofit Human Rights First estimates.

A blueprint budget released by the Trump administration Thursday showed clear priorities: It allocates $314 million to help in the border enforcement hiring effort, and $1.5 billion extra towards detention and deportation. It called for much less to go towards the courts, allocating $80 million for hiring more immigration judges, to eventually reach a total of 449. Trump will need Congress to approve funding for these plans.

One problem for the court system is that immigration judges are housed under the Department of Justice and so are funded separately from DHS. “Most people don’t realize we are a separate agency from DHS, including Congress when they are funding,” said  Dana Leigh Marks, President of the National Association of Immigration Judges, told Foreign Policy.

There seems to be little appetite among congressional Republicans to increase funding for immigration judges. “I’m not worried about the backlog, I’m worried about securing the borders,” Sen. Richard Shelby (R-AL), the chairman of the Senate subcommittee that appropriates funds for the justice department, told FP. In a follow-up email, he said he had “supported efforts to provide additional resources to hire more immigration judges” in the past.

Hiring new immigration judges is no cakewalk, even with funding. Currently the Justice Department is working to fill 74 open positions, according to a spokesperson. The application process for hiring typically takes 12 months, including background checks, she added.

And the work can be grueling. Judges deal with a breakneck schedule, plaintiffs who must speak through translators about traumatic subjects, and asylum cases centered on horrific abuses, but where documentation is difficult to find and clearly verify. “We hear death penalty cases in a traffic court setting,”  said Marks.

She was heartened that Trump’s budget blueprint envisions funding for more immigration judges but remains “seriously concerned that even that number will be sufficient over the long run.”

Advocates worry that cases that already drag on for years will become far more painful because many more will be kept in detention during that time, instead of being released on bond or parole.

“Even under Obama, we saw how demoralizing the detention centers are, and the poor health care, the poor recreational facilities for the children,” Bill Hing, a law professor at the University of San Francisco, said.

Detention has real costs for the detained, harming their chances at prevailing in court even when they have legitimate asylum claims. “It basically creates barrier to counsel, interpreters, mental health care, witness evidence —  all the tools that are necessary to meaningful seek protection,” Dree Collopy, an immigration lawyer and asylum expert, said.

Photo credit: JEFF TOPPING/Getty Image

Kavitha Surana is an editorial fellow at Foreign Policy, where she produces breaking news and original reports with a particular focus on immigration, counterterrorism, and border security policy. Previously, Kavitha worked at New York magazine’s Bedford + Bowery blog, CNNMoney, The Associated Press in Italy, and Fareed Zakaria GPS and has freelanced from Italy and Germany for publications like Quartz, Al Jazeera America, OZY, and GlobalPost/PRI. In 2015, she was awarded a Fulbright trip to Germany, as well as a grant from the Heinrich Böll Foundation to report on migration and integration. She also reported from Rwanda and Senegal. Kavitha studied European history at Columbia University and holds a master’s degree in journalism and European studies from New York University. She has studied in Italy and Peru and speaks Italian, Spanish, Portuguese, and French. @ksurana6

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