President Donald Trump’s illegal immigration crackdown will be hampered if he does not address a persistent choke point — a large backlog in the immigration courts — according to experts who have studied the issue.
The Center for Immigration Studies will host a panel discussion on the issue Tuesday at 9:30 a.m. at the National Press Club.
Statistics tracked by the Transactional Records Access Clearinghouse at Syracuse University indicate that as of May, there were 598,943 pending immigration cases. Andrew “Art” Arthur, a former immigration judge who currently serves as a fellow in law and policy at the Washington-based immigration think tank, examined the backlog last month. His paper drew on a June Government Accountability Office (GAO) report finding a large and growing backlog. Specific findings included:
- The number of cases from previous years that remain open at the start of a new fiscal year more than doubled from fiscal year 2006 to fiscal year 2015. The GAO cited declining numbers of completed cases as the primary reason. Completed cases declined by 31 percent between FY 2006 and FY 2015, shrinking from 287,000 to 199,000.
- The backlog of about 212,000 cases pending at the start of FY 2006 grew to 437,000 at the start of FY 2015. The median age of pending cases rose from 198 days to 404 days during that time.
- Judges have been postponing cases more frequently. Immigration judges continued about 72,000 cases in FY 2015, a 54 percent increase from the 47,000 continuances issued in FY 2006. The delays drew complaints from Department of Homeland Security lawyers.
- The backlog was not just a function of staffing. Total cases completed declined even as the number of immigration judges increased by 17 during that 10-year period.
Arthur said inadequate resources clearly are a part of the problem.
“We’ve had too few judges for far too long,” he said.
Attorney General Jeff Sessions is moving swiftly to address the issue. The Department of Justice, which oversees immigration courts, has hired an additional 21 judges out of the 125 that Sessions has pledged to add this year and next.
Arthur said that will chip away at the caseload, which stood at 1,837 cases per judge in May of this year.
“But the more important issue is Obama-era decisions that allowed people to enter the United States illegally and stay,” he said.
Former President Barack Obama created the Deferred Action for Childhood Arrivals (DACA) program in 2012 and then later issued a larger quasi-amnesty order known as Deferred Action for the Parents of Americans (DAPA). Although a federal judge blocked the Obama administration from issuing work permits to DAPA recipients, the administration was able to narrow its enforcement priorities to illegal immigrants with criminal records.
Even though DAPA and DACA did not apply to new illegal immigrants, Arthur argued that the policies provided an incentive for illegal immigration. The same goes for the Obama administration’s reluctance to detain illegal immigrants.
“It would encourage people to come to the United States illegally … and to fight their deportations and get continuances on the off chance that they’d be allowed to stay,” he said.
Better enforcement and increasing detention space, as the Trump administration has called for, would help, said Ira Mehlman, a spokesman for the Federation for American Immigration Reform.
“Just the increased threat of being held rather than being released is going to be a deterrent.”
“But we also need to streamline the process,” he said. “The law allows for many layers of appeal.”
Mehlman said increasing the detention capacity would do more than simply boost the number of illegal immigrants who could be held pending adjudication of their court cases; it also might make foreigners rethink the decision to come to America illegally in the first place. He compared it to the impact of hiring more Internal Revenue Service agents.
“Just the increased threat of being held rather than being released is going to be a deterrent,” he said.
Dana Marks, president of the National Association of Immigration Judges, told Politico earlier this month that many cases actually are moving slower in the Trump era because the administration has moved judges to courts along the border to speed up processing there. That has caused delays in those judges’ home courts, she said.
Arthur said Marks has a point but added that it should eventually deter border crossings.
“In the short run, that is going to be an issue, and in the short run, that is a problem,” he said. “In the long run, however, you’ll have fewer people trying to enter in the first place.”
Arthur said the immigration court backlog can be cut down to a manageable level — but not quickly.
“Because of the neglect of the Obama administration, it’s going to be a yearslong process.”