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How a ‘dire’ immigration court backlog affects lives

September 18, 2017 at 6:30 PM EDT
As lawmakers debate how to deal with immigration reform, little attention is paid to the nation’s immigration court system, which has more than 600,000 cases pending and only 334 judges to hear them. John Yang is joined by Judge Dana Leigh Marks to discuss immigration law and whether the Trump administration's steps to move and hire judges will decrease the growing backlog.
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WILLIAM BRANGHAM: But first: an inside look at the country’s overwhelmed immigration court system.

Our John Yang is here, and he has that story.

JOHN YANG: William, for all the headlines and all the debates about what to do about illegal immigration, much less attention is being paid to the nation’s immigration court system.

It’s the first stop for most people charged with being in the country illegally. The current backlog is at a record high, more than 600,000 cases pending, with about 334 judges to hear them. The average wait time for a hearing is 672 days, nearly two years.

Earlier, I talked with Judge Dana Leigh Marks, who has been a judge in San Francisco for more than three decades. Immigration judges are generally prohibited from giving interviews, but Marks spoke with us in her role as president the National Association of Immigration Judges.

Judge Marks, thanks for joining us.

Help us understand how immigration counts work. Who appears before you, and what is it you’re trying to decide or determine?

JUDGE DANA LEIGH MARKS, President, National Association of Immigration Judges: Well, immigration is often compared to tax law in its complexity, but I’m fond of saying that immigration law is even more complicated than tax law, because no one has developed a TurboTax for immigration law.

Immigration courts are the trial-level courts that someone comes to if the Department of Homeland Security asserts that they are in the country without proper status or that they have somehow violated a legal status that they had, such as being a tourist who worked or a student who no longer went to school.

We try to decide if they are in fact here in unlawful status at this point, and then decide if there are any benefits they’re entitled to apply for under the very complicated Immigration and Nationality Act.

JOHN YANG: And we have heard about the backlog overall. How many cases are pending before you, and how long does it take someone — for one of these cases to get before you for a hearing?

JUDGE DANA LEIGH MARKS: I have over 3,000 pending cases in front of me personally, and it often takes as long as four to five years to finally hear a case and make a decision on the merits.

JOHN YANG: So, for those thousands of people, what’s the real-world implications for those people to have that backlog and take that long to get their case decided?

JUDGE DANA LEIGH MARKS: That’s a great question.

The backlog is extremely problematic for many people, because evidence that they have become stale. They lose track of witnesses. Sometimes, they need to have certain relative as a qualifying relative in order to obtain a benefit, and that relative can become ill and die, or the relative has to be underage and, just by the passage of time, that person becomes an adult.

So there is frustration often from people whose cases are pending before the courts that it’s problematic to them that their cases are pending so long.

In essence, we’re doing death penalty cases in a traffic court setting. We are already working at light speed, and yet the stakes for the people who are before the courts can be a risk to their very life, particularly if they are fearing persecution or other harm if forced to return to their home countries.

JOHN YANG: And do they have lawyers representing them?

JUDGE DANA LEIGH MARKS: Removal proceedings, deportation proceedings are civil. There is no right to an appointed counsel.

So the only people who have lawyers are those who can afford to provide them or those who are lucky enough to find volunteers. Overall, approximately 60 percent of the people who appear before us are able to find lawyers. But if you look only at cases where people are detained, only 15 percent of those individuals are able to find representation.

JOHN YANG: And this backlog started actually in the previous administration, the Obama administration. What has the increased enforcement or the stepped-up enforcement of the Trump administration done to the backlog? What effect does it have?

JUDGE DANA LEIGH MARKS: What’s been difficult for us is that the backlog has been growing for over a decade.

For various reasons, the immigration courts have not been a priority for budgeting. And the amount of money that has gone to immigration law enforcement has not included an equivalent amount of additional funding for the courts.

So, we have been struggling. And over the past few years, it’s just become dire. The courts are basically on the verge of complete — being completely overwhelmed and collapsing under the caseload.

JOHN YANG: Now, President Trump rescinded DACA, the program. He said it will sunset in six months. Congress may try to do something about it.

But if it — if that program were to go away in March 2018, what would that do to the backlog? What would that do to the immigration courts?

JUDGE DANA LEIGH MARKS: The estimate on how many people are here under the DACA program ranges from 700,000 to 800,000.

We don’t know how many of those individuals already had cases in immigration court. But if even 100,000 of them did, those cases could immediately be reopened. And you can imagine what such an action would do for the court dockets, that we would instantly be inundated with an additional tens of thousands, maybe hundreds of thousands of live, pending cases to begin to put on our dockets again.

JOHN YANG: The Trump administration has moved some judges to the border states, or to the areas along the border, and also started to hire more judges.

Has that helped at all?

JUDGE DANA LEIGH MARKS: Well, the moving of judges to the border so far has been problematic for the judges, because we have been taken from our existing home courts and moved on a temporary assignment to address cases at the border.

The hiring of new judges eventually will be extremely helpful, but it is not a rapid process. And we also have a veritable tsunami of immigration judge retirements on the horizon. Last June, it was estimated that 39 percent of the immigration judges on board were eligible to retire.

So it’s going to be quite a while before we have enough judges on board to handle the existing backlog of current cases.

JOHN YANG: Judge Dana Leigh Marks, president of the National Association of Immigration Judges, thanks so much for taking the time to explain this system to us.

JUDGE DANA LEIGH MARKS: Thank you so much.

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