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Amid border crisis, immigration judges push for more resources

July 10, 2014 at 8:29 PM EST
Changing a 2008 law that requires court hearings before deportations of children is part of a potential compromise that emerged on Capitol Hill today. Jeffrey Brown talks to Dana Leigh Marks of the National Association of Immigration Judges about the backlog of court cases, as well as a push for more transparency in the funding of immigration judiciary system.
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JUDY WOODRUFF: President Obama has asked Congress for almost $4 billion to deal with the recent influx of unaccompanied children from Central America. But Republicans in Congress have showed no signs of quickly giving the administration what it wants.

Jeffrey Brown has our report.

SEN. MITCH MCCONNELL, Minority Leader: What he appears to be asking for is a blank check, one that would allow him to sustain his current failed policy.

REP. JOHN BOEHNER, Speaker of the House: We’re not giving the president a blank check. Beyond that, we will await further discussions with our members before we make any final decisions.

JEFFREY BROWN: As the day began, Republican leaders were in lockstep against President Obama’s emergency request for $3.7 billion. It’s aimed at stemming the flow of unaccompanied migrant children across the Mexican border, some 57,000 since October, mostly from Central America.

Senate Minority Leader Mitch McConnell and other Republicans insisted the president’s underlying immigration policy is the real problem and his budget request, by itself, is not the answer.

SEN. MITCH MCCONNELL: But we want to make sure we actually get the right tools to fix the problem. And that’s not what we have seen so far from the president.

JEFFREY BROWN: The White House shot back that there’s a clear and urgent need for funding to add more immigration judges, detention facilities and other programs.

Homeland Security Secretary Jeh Johnson made the case at a Senate hearing this afternoon.

JEH JOHNSON, Secretary of Homeland Security: The request that we have made for a $3.7 billion supplemental is indeed a lot of money for the taxpayer. From my perspective, this request has the right focus on deterrence, added detention and removal.

JEFFREY BROWN: The back-and-forth in Washington came as President Obama wound up a visit to Texas. Last night, in Dallas, he rejected Republican demands that he visit the border.

PRESIDENT BARACK OBAMA: This isn’t theater. This is a problem. I’m not interested in photo ops. I’m interested in solving a problem.

JEFFREY BROWN: Instead, the president pressed Texas congressional leaders to support his funding request.

PRESIDENT BARACK OBAMA: The only question at this point is why — why wouldn’t the Texas delegation or any of the other Republicans who are concerned about this not want to put this on a fast track and get this on my desk, so I can sign it and we can start getting to work?

JEFFREY BROWN: But as the day unfolded, the outlines of a possible deal emerged. It involves changing a 2008 law that requires court hearings before deportations of children unless they’re from Mexico or Canada. Top Democrats left the door open to including that change in the president’s package.

House Minority Leader Nancy Pelosi:

REP. NANCY PELOSI, Minority Leader: It’s not something that would be a deal-breaker as we go forward. Let them have their face-saver. But let us have the resources to do what we have to do.

JEFFREY BROWN: And Senate Majority Leader Harry Reid said Democrats on his side are not going to block anything for now. The White House also signaled it’s open to changing the law to quicker deportations of migrant children.

As children continue to pour across the country’s southern border, it’s the nation’s 228 immigration judges who are tasked with deciding who stays in the U.S. and who gets sent back home.

We get a view from within the system from Dana Leigh Marks, president of the National Association of Immigration Judges. She’s been a judge for 27 years and is based in San Francisco.

Well, thank you, Judge Marks, for joining us.

Everyone seems to agree about the huge backlog, but how serious a problem is it for the system and for an individual judge?

DANA LEIGH MARKS, National Association of Immigration Judges: It’s an extremely serious problem.

The immigration courts have 375,000 cases pending before them right now, and only 228 immigration judges across the country to deal with those cases. The National Association of Immigration Judges has been trying to call attention to the extremely overburdened conditions and — that our dockets are experiencing and how long cases remain pending, which can be four or five, sometimes six years in various parts of the country if someone is not detained.

But we have had trouble getting attention focused on us.

JEFFREY BROWN: Well, a lot of attention now. What kind of immigration changes have immigration judges seen in terms of who is appearing before you? Are you seeing many younger people now?

DANA LEIGH MARKS: Yes.

Over the past three to four years, there has been a steady increase of unaccompanied juveniles that are appearing before the court, because what happens is when people are encountered at the border, their cases may not necessarily stay there. If they have family members that they are reunited with, then they are allowed to change the venue of their cases, and those cases end up being transferred to the 59 immigration courts around the country.

JEFFREY BROWN: I know immigration law can be complicated, like other aspects of the law, but is there an easy way to describe the criteria that you use or the amount of leeway that an individual judge has in deciding cases like this?

DANA LEIGH MARKS: Actually, the immigration law is so complex that it’s very often compared to tax law, and yet the amount of leeway a judge has is very, very limited.

Immigration law has a series of categories that are very, very rigid. If someone fits within one of those categories, they may be eligible for some kind of release from an order of deportation and removal.

But if they don’t fit in that category, then the judge can be required to send them back home.

JEFFREY BROWN: So, given this enormous caseload, how much time — give us a sense of how much time a judge can spend with any particular person before you, and what happens in a courtroom?

DANA LEIGH MARKS: Well, the courtrooms are very much like criminal courtrooms that you see across the country, except that people are not represented. There’s no guarantee of representation by an attorney. And so approximately 40 percent of the people nationwide do not have attorneys.

And if you look at the detained population, approximately 85 percent of those individuals do not have attorneys to represent them. So, the judge has to spend additional time explaining to the individual the procedures, what is going on, what possible remedies they might have under the immigration law.

And it’s extremely difficult for an immigration judge when there is not an attorney representing the person who’s appearing in court. The government is represented by attorneys in virtually all cases.

JEFFREY BROWN: But, presumably, that means the level of evidence that you actually hear must differ all the time.

DANA LEIGH MARKS: It varies dramatically depending on whether or not the person is represented and how well represented they are as well, since it’s also well-known that immigrants can be victimized by unscrupulous lawyers.

And so we have difficulty with substandard immigration law practice in our courts as well.

JEFFREY BROWN: So, now the president has proposed adding 40 new judges in what he put forward this week. How easy is it to ramp up the numbers in terms of the training that a judge needs, and what kind of difference do you think that would make?

DANA LEIGH MARKS: It will be — any addition to the corps will be extremely helpful. We can’t deny that.

But it is not an easy job to ramp up quickly. Immigration judges need many years of experience in immigration law or in being judges. Many judges agree that it takes probably four to five years to really hit your peak in being a judge in this kind of specialty setting. And we are very concerned that this is just a drop in the bucket.

The Senate bill that was introduced last spring, Senate Bill 744, recommended that there be 75 new immigration judges in each of the next three years, 2014, 2015 and 2016. So, you can imagine that 40 coming now towards the end of 2014 is not nearly enough to solve the problem that has been existing in the immigration courts even before the surge occurred.

JEFFREY BROWN: So your group is pushing for more judges, more what?  What would you like to see, in our last minute here?

DANA LEIGH MARKS: We would like to see more immigration judges, more judicial law clerks — those are attorneys — to help us.

And we actually believe that the best long-term reform for the immigration courts is to move us out of the United States Department of Justice and make us an Article 1 court, similar to the tax courts or the bankruptcy courts, so that there’s transparency in how money is allocated and how it’s spent to the courts, and so that we don’t find ourselves in the circumstances a few years later down the line.

JEFFREY BROWN: Very briefly, when you say transparency, you mean that is not there now in terms of the funding?

DANA LEIGH MARKS: We don’t believe it is as transparent as it should be, correct.

JEFFREY BROWN: All right, Judge Dana Leigh Marks, thank you very much.

DANA LEIGH MARKS: Thank you, Jeffrey.

Hear more voices from the immigration debate. PBS NewsHour has invited an immigration judge, a border patrol officer, an immigration lawyer and an Arizona rancher to give a personal account from their front-seat view of the clash over the recent influx of migrants from Central America. Watch these conversations in the playlist below: