Immigration courts have slowed dramatically and their case backlog has jumped by a full third since January 2017, according to figures released just three days before Attorney General Jeff Sessions will address a conference of immigration judges.
The nationwide backlog hit an all-time high of 714,067 cases in May, an alarming 32 percent jump from where things stood when Trump was inaugurated, according to statistics released Friday by the Transactional Records Access Clearinghouse (TRAC). There are 171,656 more human beings awaiting an immigration court’s decision on their fate than when he took office.
Those numbers might sound like a reflection of Trump and Sessions’ substantial uptick in immigration enforcement activity overall, but that’s not true. The big jump in backlogged cases is not caused by an increase in new cases being filed, TRAC’s Friday report says, but by “the lengthening time it now takes to schedule hearings and complete proceedings in the face of the court’s over-crowded dockets.”
“[I]ndeed, case filings are running slightly behind that of last year at this time,” the researchers wrote.
If the pace of new immigration cases is slowing down, the backlog should be shrinking rather than expanding. But cases are now taking far longer to resolve – 42 percent longer for cases that result in a person actually being removed from the country, than in fiscal year 2016.
TRAC co-director Susan B. Long told ThinkProgress that the counterintuitive increase in backlogged cases despite fewer new filings owes to a complicated mix of factors, including some of Sessions’ own policy choices.
“They reassigned judges to border areas, and that would mean that everything on that judge’s docket in their home court would suddenly have to be rescheduled,” said Long. Some of the specific jurisdictions where immigration cases move fastest are in these border areas, though Long said the organization’s data doesn’t allow researchers to establish causal connections for either fast or slow court action.
“They’ve also changed rules on whether or not cases can be administratively closed, and that’s reduced the pace of closures,” Long said.” So you’ve got a number of actions here that have compounded the overcrowded docket.”
Sessions was able to ban immigration judges from using the practice of “administrative closure” to streamline their dockets because the immigration courts are not independent judiciary structures like criminal, civil, and appellate courts.
“Legally speaking, they’re agents of the attorney general. The statute doesn’t really talk about immigration judges, but there are provisions that talk about granting relief from deportation, that say ‘the attorney general shall,’” immigration lawyer David Leopold said. The immigration courts and their judges are the tools by which the Department of Justice fulfills that statutory responsibility, but they are not insulated from political appointees as are members of the actual judicial branch.
Though Sessions portrayed administrative closures as an oft-abused tool, immigration law practitioners told ThinkProgress at the time that judges really used it to avoid interfering in situations where someone is pursuing legal status through the asylum or green card systems.
“Now the judge’s hands are tied,” Ur Jaddou of DHS Watch said. “Despite knowing in the back of their head this person has a potential avenue for a green card, they have to get through the hearing and issue a removal order in that case, which makes no sense. He’s tied their hands and they can’t do anything about it.”
The numbers released Friday do not yet capture the effects of that May policy change. There are more than 200,000 further cases that could be forced back onto the already record-breaking backlog pile as a result of the change.
On Monday, Sessions will come face to face with many of those whose work he’s made slower. The Executive Office for Immigration Review’s annual week of training seminars is kicking off in Falls Church, Virginia, and Sessions plans to deliver remarks.
“My question is will there be any buzz in the room? Will they ask him questions or in any way raise the issue of how their power has been undercut?” Leopold said. “Their ability to manage their cases has been eviscerated.”
The contrast between the administration’s dark promises of a sped-up deportation system and the reality of how the immigration courts have stalled out under Trump will be fully evident to the people gathered to hear Sessions speak Monday. But it remains to be seen if he will address himself to their professional concerns or target his speech to the national audience likely to tune in online and on television.
“I don’t think he can come out in a public speech and say, you guys are our front line in deporting people, that would be awkward. But that’s clearly how he sees them,” Leopold said. “I wonder if he’s going to go in there and frame it in terms of I’m giving you the tools you need to move these cases effectively, when in fact it’s totally the opposite.”