At its present pace, the Trump administration would double the backlog of immigration cases facing Department of Justice administrators by the end of his first term in office.
The backlog rose again in August, according to numbers released Wednesday by the Syracuse University-based researchers who track and centralize official data on a variety of federal agencies. There are now 764,561 outstanding cases in the immigration courts system managed by Attorney General Jeff Sessions and his staff, up from 746,049 at the end of July.
The DOJ system has been choking on its caseload for decades. But the problem has accelerated dramatically rather than improved under Trump. There were fewer than 543,000 backlogged cases in the system at the end of January 2017.
The August figures mark a 41 percent increase over the first 19 months of Trump’s tenure — or roughly 40 percent of his first four-year term. By comparison, the backlog grew by 33 percent in George W. Bush’s first term and 11.1 percent in his second, then jumped by almost 75 percent in Barack Obama’s first term and almost 59 percent in his second as deportations quietly surged. Trump’s noisier, absolutist approach, entrusted in large part to an attorney general who has called for a reduction in the share of Americans born abroad regardless of their legal status or citizenship, has the system on track to smash even those alarming swells and double the backlog in just four years.
The administration is trying to break the trend, of course — primarily by squeezing DOJ’s immigration judges, demanding they operate as rubber-stamp functionaries. One immigration attorney has characterized the combined effects of Trump’s mass roundup of the undocumented and Sessions’ radical changes to court rules as an attempt to convert the deliberative process of the courts into a deportation assembly line. Trump’s trying to make good on the xenophobic promise of his campaign phase; it’s just backfiring.
Sessions has ordered judges — who swear an oath to uphold the law but do not have the judicial independence implied by their job titles — to meet a quota for case processing. He’s installed software on their work computers that presents case statuses using a speedometer-style gauge to visually remind the immigration judiciary’s worker bees how far behind his desired pace they are. He’s touted hiring 108 new judges since taking office, while also yanking individual judges around the map and disrupting their existing caseloads by reassigning them to hot-spot priority areas.
Beyond mere inefficiency, Sessions’ practices are grinding away at judges’ morale. The “IJ Dashboard” speedometer software is causing “unprecedented anxiety and stress,” National Association of Immigration Judges head Ashley Tabbador said last week in Washington, D.C.
“Eighty percent of it is red, and then there’s a little bit of yellow and a little bit of green. Everything’s supposed to be in the green but of course you come in and see all these reds in front of you, this running dial attached to that– the judges are just so shocked,” she said. “It’s crazy, it’s unreasonable, it’s so disconnected.”
The department has portrayed its quotas as reasonable, saying by their calculus it would work out to three cases per day. Tabbador said that math is wrong, but that even if you accept the DOJ’s premise they are still making an insane ask — one that puts the lie to the notion these courts are being run in accord with their statutory function as precise and careful evaluators of individual migrants’ cases and rights.
“That means the entire lifespan of a case is supposed to be about two and a half hours. I just want you to imagine that: Two and a half hours to read filings, have a hearing, hear testimony, deliberate, and make a decision. Two and a half hours from beginning to end,” she said.
Sessions’ demands place judges in an impossible position, said Tabbador, whose position leading the profession’s labor organization entitles her to speak publicly where others are barred from commenting. The attorney general is telling judges to ignore the actual deliberative requirements of their jobs in order to crank out casework faster than is feasible, effectively asking them to ignore their oaths of office. Tabbador tells her colleagues to place the law first, she said, when they feel forced to choose between doing the job right and doing the job fast.
“I go back to the judges and say look, just do the job. If this requires seven hours of review, you put in that seven hours of review. If it requires two days of testimony, you do that two days of testimony,” she said. “Don’t cut corners. Don’t compromise your oath….But that’s a lot of pressure for people who are worried about their mortgage and their kids’ tuition.”
She acknowledged she can’t guarantee that NAIJ will be able to protect judges’ jobs should Sessions decide that failure to hit the impossible quotas is grounds for discipline, but said she’s optimistic they’d prevail in any such labor disputes.
Asked at the press conference by the Huffington Post’s Elise Foley if she feels Sessions is pressuring judges to decide cases in a certain way as well as to decide them faster, Tabbador paused and then demurred.
“I think I would just say, listen to the attorney general’s remarks and decide for yourself what message is being sent,” Tabbador said.