A catastrophic hardware failure on April 12 disabled the computer system that maintains dockets for the nation’s immigration courts. Six weeks later, the system is still not fully functional.
“Every single thing that we do goes through this docketing system,” said Dana Leigh Marks, president of the National Association of Immigration Judges and a San Francisco-based judge.
From April through May 19, judges were forced to resort to old-fashioned technology, using four-track tape recorders or pencils and paper in the absence of their usual digital audio recording system. Immigrants and family members looking for information on pending cases from the agency’s phone hotline were greeted with a recording that explained that there were no updates “due to system issues.” The 1-800 number went up again this week, but is still “limited to providing information recorded in the electronic database, which our staff will continue to update,” according to a statement on the Department of Justice’s website. The agency did not respond to a request for an interview.
Compared to the Obama administration’s swift public reaction to the HealthCare.gov website snafu, the response to the court system’s crash has been less than urgent, something Judge Marks said she finds “very frustrating.”
“I find it hard to believe that the American government, with the resources it has, couldn’t have found a way to restore the capability faster,” said Marks.
While it is not yet known how many deportation cases were delayed by the network failure, the crash provides a window into the broader problems facing the country’s already severely backlogged immigration courts. According to the Transactional Records Access Clearinghouse at Syracuse University, which maintains an ongoing public record of government activity using Freedom of Information Act requests, there were 367,000 pending cases as of March 2014, with the average case taking 578 days to resolve.
“I’m running out of adjectives to try to explain how hard our job is right now,” she said.Marks, who has served as an immigration judge for 27 years, said it’s only logical to think that “antiquated” technology and a lack of resources are at least partly to blame. “I’m running out of adjectives to try to explain how hard our job is right now,” she said. “We were unbelievably saturated before this happened and it just took us to one next level of difficulty.”
The nation’s 233 acting immigration court judges are dealing with an average of 1,500 pending cases apiece at any given time, compared to about 440 pending cases for a district court judge. And while district judges commonly employ between two and four full-time judicial law clerks to help summarize cases and research legal issues, one clerk is typically shared among four immigration judges.
Marks, who describes her job as tackling “death penalty cases in a traffic court setting,” said that if a judge makes the wrong decision, such as sending an asylum-seeker back to their home country undeservedly, that person “could go back home and they could be killed — and it has happened. That is the emotional price the judges have to pay.”
For judges who feel overwhelmed by their caseloads already, those daily decisions can be heartwrenching. A 2009 University of California study found that immigration judges suffer from stress levels higher than emergency room doctors or prison wardens. Judges are scheduled to be in court 36 hours a week, with only four hours out of court to read all of the submissions for their weekly caseload. Immigration law is commonly compared to tax law in terms of its complexity, but as Marks points out: “At least with tax law, there’s TurboTax.”
Court advocates say the staffing and budget problems are due partly to the enormous growth of resources for immigration enforcement, with no linkage to the amount of resources devoted to the courts.
Indeed, a recent report by the non-partisan Migration Policy Institute found that while the budgets for Customs and Border Protection and Immigration and Customs Enforcement “have grown dramatically, funding for the work of immigration judges… has not kept pace.” In the past decade, budgets for CBP and ICE rose about 300 percent compared to a 70 percent increase for the Executive Office of Immigration Review, according to the report, and “as a result, judicial removals are a significant choke point in the deportation system.”
A delay tactic, or just a delay?
The computer problems have not generated a coordinated response from either side of the immigration reform debate. Some in favor of increased enforcement have pointed to this slow response time as an example of an administration that doesn’t want to deport people anyway.
But Mark Krikorian of the Center for Immigration Studies, a group that favors stricter limits on immigration, dismissed that notion. “If there was some real angle where the administration could undermine the enforcement of the law this way, I don’t doubt that they would take it,” he said. “I just don’t think that’s what this is.”
Even though the glitches “may help a few people in the sense it will drag their cases out longer,” he added, in the broader sense, “this is no plan cooked up in the White House. It is just simple fecklessness.”
Only time will tell how long it will take to catch up and how many errors occurred during the past five weeks, said Marks, and it’s impossible to know how many materials didn’t get into the system, or how many files failed to make it to the appropriate judges. “It’s not automatically that you flip a switch and we’re completely back up and running.”
Meanwhile, she says, U.S. immigration courts are often the only justice system that foreigners come in contact with while in the United States. “How can we tout us as being the best court system, and one people should emulate, when stuff like this happens?”