678

That’s the current number of cases heard per year, on average, before each U.S. immigration judge. Not good enough says Attorney General Jeff Sessions, who has now imposed an annual minimum quota of 711 such cases (with no more than a 15% appeal rate) for any judge to receive a “satisfactory” job performance rating. And no, immigration courts are not part of our judicial branch of government; they are completely contained within the Department of Justice, ultimately reporting to Sessions.  

According to the Transactional Records Access Clearinghouse at Syracuse University, the case load for immigration judges has increased 33% in the last two years. These days, it takes a national average of 711 days (almost two years) from detention to trial in these horribly overcrowded courts, much longer in the most overcrowded venues. The actual hearings seldom last more than a couple of minutes each. Currently, there are approximately 330 such judges presiding in 58 courts around the nation. While there are currently 350 unfilled judgeships in the immigration courts, the federal budget has only funded 100 of those positions. 

Even though prospective deportees are held in de facto jails, and while the U.S. Constitution applies even to non-citizens, there are serious differences between Immigration Courts and the regular federal criminal courts. First and foremost, there is absolutely no right to counsel to immigration detainees, regardless of age or financial status. There is some exceptionally limited advice as to the nature of the proceedings, but the Trump administration wants to end even this minimal preliminary advice:

“According to an official with DOJ's Executive Office for Immigration Review, the body that runs the immigration courts, the agency has "paused" the General Legal Orientation Program, which advises detained immigrants of their rights, and an immigration court help desk program that non-detained aliens can call into. The programs receive about $8 million annually, the official said.

“The Legal Orientation program was created under President George W. Bush in 2003. Unlike in the criminal justice system, immigrants are allowed to have legal counsel but the government is not obligated to provide it, so many undocumented immigrants have no legal help as they argue their case to stay in the US.” CNN.com, April 11^th. But when it comes to the hearing, they have been on their own for a while.

Lone toddlers and very young children (those without parents present) have to make their case to the judge by themselves even though they haven’t got a clue what is happening. And while the immigration system has deployed a “catch and release” practice for all but the most dangerous detainees, Trump wants to end that practice, which will put a huge number of unconvicted people in jail without any hearing. 

The Editorial staff at the Los Angeles Times (April 9^th) writes: “The immigration courts… have been understaffed for years. Making matters worse, the pace of proceedings is slowed not only by sheer volume, but also by the absence of attorneys to steer clients through the process… Other challenges include the difficulty in procuring and verifying documents from other (sometimes unstable) countries and the time required to weigh evidence in asylum requests and other complex cases. 

“Judges and immigration lawyers have warned that speeding up the process could increase the number of appealable decisions because there would be legitimate questions over whether a decision to refuse to hear a witness as duplicative, or to not admit further evidence, is based not on the merits but on the fact that the judge is lagging behind in closing cases.

“As it is, judges clear an average of 678 cases a year, so pushing that up to 700 might not seem like a big change. But the clearance rate is well below that average in courts where cases are more complex, and there, the effect of the new quotas could be severe. Judges near the southern border handling cases involving new arrivals are able to make decisions faster than, for instance, a judge in the interior of the country handling cases involving people who have established deep roots or have dependents who are American citizens. Cases involving unaccompanied minors can be particularly complex because the law allows a variety of relief options, including requesting asylum or seeking ‘special immigrant juvenile status’ if they have been abused or abandoned by their parents. Given the totality of Trump and Sessions’ attitudes toward people living in the country without permission, it’s not unreasonable to see this imposition of quotas as a pretext for speeding up deportations, due process be damned.”

The Trump administration generally has reflected disdain for Constitutional restrictions and Congressional oversight. Declaring mainstream media as the “enemy” and calling for easier filings of defamation actions, for example, stands in clear defiance of the First Amendment. Issuing executive orders with clear religious targets (the so-called “Muslim ban”) has also run afoul of that same Amendment, an issue that will soon be determined by the U.S. Supreme Court. Trump has been anything but subtle in his desire to run undocumented residents out of town with as little Constitutional protection as possible.  

As asked above, can a quota system sustain even lip service to the notion of “due process” which is a minimal requirement? Could each and every case heard in a court subject to that quota requirement be tossed as a result? Could this exceptionally un-American quota plan backfire? “[As] a Government Accountability Office report last June found, delays in individual cases usually are due to matters beyond a judge’s control. About a quarter of postponements, or continuances, were the result of technical or other operational problems in the courtroom, or the fault of the Department of Homeland Security, such as not having the deportation target available for the hearing. Forcing the judges to speed things up when they don’t control the things that slow the system down will, in all likelihood, make the system more unfair.” LA Times.

Every day, I find new policies that make me truly ashamed of my country. And as a lawyer, educated and sworn to uphold justice, it just makes me sick.

I’m Peter Dekom, and along with “due diligence” and respect for our Constitution, it also seems as if empathy and sympathy have long since left the building.