A joint investigation withInvestigative Reporting Workshop

As Senate Debates, Immigration Backlog Keeps Growing

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As the Senate debates the largest immigration proposal in more than two decades, the number of cases pending in federal immigration courts is the highest it’s been in 15 years.

As of March this year, there were 327,483 deportation cases pending, according to federal data from the Transactional Records Access Clearinghouse. Cases have increased steadily since 2006, but have risen more sharply since Obama took office in 2008, when the backlog stood at 186,108.

ICE say it’s mandated to deport 400,000 people every year, and it holds around 30,000 people in detention every day. It’s swept up hundreds of U.S. citizens and nearly 30,000 permanent legal residents in its dragnet since 2008, according to federal data.

Last month, the Office of Immigration and Customs Enforcement said it had released 2,000 detainees in order to cut costs in anticipation of the sequester. But it also said that a full 77 percent of those people didn’t legally need to be detained. That’s raised questions about why ICE continues to detain so many people when it isn’t legally necessary to do so, especially since it’s expensive to keep detainees, estimated in recent congressional testimony to cost about $160 per person per day.

In June 2011, to help reduce the backlog, ICE implemented a policy of “prosecutorial discretion,” which allowed immigration officials to determine people who could be considered “low priority” — those with no criminal background or family in the country, for example — and have their cases set aside to allow the government to pursue the most serious offenders. But the backlog has only grown since.

A spokeswoman for ICE deferred all inquiries about the backlog to the Executive Office of Immigration Review, the Justice Department office responsible for trying immigration cases.

Lauren Alder Reid, the office’s chief counsel, said that ICE recommends which cases her office pursues, and is therefore the one responsible for the backlog.

“We’re doing everything we can in terms of shifting resources, which are slim,” she said. “Nobody wants a backlog. We’re always trying to reduce it, but we have to hear the cases that are filed.”

The ICE spokeswoman didn’t respond to a follow-up email.

The Immigration Review office couldn’t immediately provide the numbers of cases ICE had recommended for prosecutorial discretion. But its own data (pdf) shows that last year, only 18 percent of cases were completed due to “administrative closure.” That term encompasses prosecutorial discretion, but can also mean that, for example, the defendant couldn’t be located. In 2011, 8 percent of cases were considered administrative closures.

As the backlog grows, conditions for those awaiting a deportation hearing are troubling, especially since these detainees haven’t been convicted or even charged with a crime. In Lost in Detention, FRONTLINE and the Investigative Reporting Workshop found more than 170 cases of sexual abuse of immigrants in detention facilities filed over the last four years through 2011.

The Department of Homeland Security only recently announced policies to protect detainees from rape and other sexual abuse that are similar to those mandated for convicted prisoners. Still, there are immigrants being held in solitary confinement for weeks, and there is a dearth of legal representation for those who have been detained.

Either way, neither the backlog nor the concerns about immigrants in detention would be addressed immediately by the new bill being considered by the Senate. Before any immigrant’s status can change, the bill says, the Homeland Security department must first secure the border.

Immigrants walk to hearings at the Stewart Detention Center in Lupmkin, Ga. (AP Photo/Atlanta Journal-Constitution, Jeremy Redmon)
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