Take everything you think you know about how courts work, throw it out the window, and you’ll get an approximation of the nation’s immigration courts. Those who can’t afford a lawyer have to represent themselves—even if they can’t speak English, have no formal education, or are a child. The burden of proof is on the accused, making them guilty of illegally entering the country until proven innocent. Hearsay is sometimes admitted as solid evidence against someone, and individuals from certain countries can be deported without ever seeing a courtroom.
Speaking to reporters at the National Press Club in DC, immigration judge Dana Leigh Marks called the courts “an alternate legal universe” and “a Through the Looking Glass world where the normal laws don’t seem to seem to function.”
“Most members of the public don’t have a clue about the realities of our world,” said Marks, who has presided for more than 25 years in a San Francisco immigration court. “When they come face to face with it, they are often dismayed.”
Immigration judges are usually banned from speaking out publicly about what happens in their courtrooms. But Marks and her fellow judge Denise Noonan Slavin took the podium Thursday on behalf of the National Association of Immigration Judges (NAIJ) to demand a complete overhaul of the current system.
Their first complaint is that the court system is underfunded and under-staffed, an old problem recently exacerbated by the influx of hundreds of thousands of unaccompanied minors from Central America. By the NAIJ’s count, there are currently only 227 field judges across the country taking on a docket of more than 375 thousand pending cases. In some areas, like Judge Slavin’s jurisdiction in Miami, Florida, judges are trying to hear at least 50 cases a day—raising serious concerns about due process.
“We feel the pressure to move things through quickly,” Slavin told ThinkProgress. “But I know that rushing things through will only result in more appeals. The less due process we have at the lower levels, the more we’ll see a crisis in the federal courts.”
And despite calls from members of Congress to the contrary, the judges said these are cases that should not be fast-tracked.
“We deal with cases that are, in effect, death penalty cases,” Marks added. “Some of the defendants may be killed if they’re returned to their home countries.”
They said they’re asking Congress to at least double the number of immigration judges, something the comprehensive immigration bill passed by the Senate last year would have mandated. But that alone won’t fix them feeling like “an afterthought at best,” and the “forgotten stepchild of the Justice Department.”
In fact, they argue that they shouldn’t be a child of the Executive Branch at all, representing one agency (DOJ) that works with a fellow agency (the Department of Homeland Security) to prosecute and deport undocumented immigrants. The NAIJ is calling for immigration courts to be made independent like other civil and criminal courts, arguing that the current situation presents a serious conflict of interest.
“We are being asked to serve two masters at one time, and the masters have different priorities,” explained Slavin. “A judge is supposed to be an independent and fair arbitrator. How can we expected to do that if we’re also considered an attorney representing the same government as one of the parties that appears before us?”
The current executive control over the judges has other repercussions as well. Recently, facing a wave of political pressure, the Obama Administration ordered the courts to move the cases of the newly arrived Central American children to the front of the docket—bypassing hundreds of thousands of people who have waited years for a hearing.
“This should not be an amusement park where you can ‘fast pass’ proceedings,” said Slavin, adding that US and international law recognizes that “children are different,” and should thus be given more time to find lawyers and prepare their cases.
She cited other conflicts of interest, including rules that bar her from holding government attorneys in contempt, though she and other judges are free to declare private attorneys representing migrants in contempt.
Because these changes would require an act of Congress and a lot of money, the judges conceded that chances are slim in the current political environment. They’re currently talking to lawmakers and their staff, and are hoping someone will step forward soon to champion these reforms.