With 'zero tolerance,' new strain on already struggling immigration courts

In a federal courtroom in the border city of McAllen, Texas, two weeks ago, 74 migrants waited as Judge J. Scott Thacker confirmed their names and countries of origin. Tired and nervous, the migrants were wearing the clothes they had been arrested in, translation headsets, and ankle chains that clinked as some of them fidgeted.

After having their rights and potential punishments explained to them, Judge Thacker asked the seven rows of migrants – mostly from Honduras, El Salvador, or Guatemala – how they wanted to plead. “Culpable,” they all answered. Judge Hacker sentenced almost all of them, row by row, to time already served and a $10 fine.

At one point, a man from Honduras separated from his son explained why they had traveled to the United States. Thacker listened, then addressed the whole room.

“Ladies and gentlemen, I am not a [specialist] immigration judge; I am not in the immigration system,” he said. “Once you enter the immigration system you can explain your situation to them.”

In immigration court in San Antonio, a few hours north, Judge Charles McCullough is working through cases from the summer of 2017.

Over three hours, he moves smoothly through hearings for a dozen people. One man accepts voluntary departure to Mexico, but then things get complicated. One case has to be postponed because of irregular paperwork. Another sparks a brief debate over whether a US Supreme Court decision last year means it can be thrown out. His final hearing is a mother and two children from Colombia, accused of overstaying their visas. He schedules their next hearing for September.

Staff shortages and an ever-increasing caseload have been problems for years, compounded by successive administrations using the courts to achieve political and policy goals. Cognizant of the burden the immigration court system is under, and the additional strain its stated goal of having zero unauthorized immigration into the US would represent, the Trump administration is going to great lengths to try and streamline immigration court proceedings.

Unlike every other court in the country, immigration courts are part of the executive, not judicial, branch. And the judges who staff those courts are not judges in the common sense, but are employees of the Executive Office for Immigration Review (EOIR), a wing of the Justice Department. Thus, Attorney General Jeff Sessions has significant authority to reshape how the courts operate.

The changes the Trump administration is engineering, however, have experts and former immigration judges concerned that the immigration court system could be even more burdened.

“All those weaknesses, those weak points, are being highlighted by the measures this administration is taking,” says Ashley Tabaddor, an immigration judge in Los Angeles and president of the National Association of Immigration Judges.

“The immigration court system is designed to protect the … founding principles of our American democracy,” she adds. “If you don’t care, then that’s the first brick that’s being taken out of the foundation.”

One example of how that system is being strained further is the estimated 3,000 children still separated from the their families by the “zero tolerance” immigration policy. Trump administration officials told a judge Friday they couldn’t comply with a June court order to reunite children under 5 with their families by Tuesday. (Children over 5 are to be reunited by July 26.) At least 19 parents of those children already have been deported without them, according to reports.

“[A] guy that shows up here every day and does this every day has to find hope somewhere.... I’m hoping that maybe the moral outrage associated with what’s happened will be the thing that finally — the catalyst that finally makes us look hard at this immigration system that we all agree needs to be fixed,” Judge Robert Brack of the US District Court of New Mexico told “PBS Newshour.”

720,000-case backlog

On the day he retired, June 30, 2016, Paul Schmidt was scheduling cases through the end of 2022. In a system with a roughly 720,000-case backlog, according to Syracuse University’s Transactional Records Clearinghouse, it wasn’t an unusual situation. The backlog has been steadily growing for decades, something Mr. Schmidt blames on recent administrations using the courts to respond to urgent political crises.

For example: When thousands of unaccompanied minors from Central America traveled to the border in 2014, the Obama administration told immigration judges to prioritize those cases.

“Each administration comes in and moves their priority to the top of line and everything else goes to the back,” he says. “You have aimless docket reshuffling, and the whole system after a while loses credibility.”

The Trump administration is now doing the same thing, telling immigration courts to prioritize the cases of detained families. But what concerns Schmidt and other former immigration judges even more are changes Mr. Sessions is making to how immigration judges can hear and resolve the cases before them.

“Our immigration system and our immigration judges are under great stress,” Sessions said in a speech to immigration judges last month.

A main cause, he added, is the asylum process being “abused” by people making fraudulent claims that transform “a straightforward arrest for illegal entry and immediate return into a prolonged legal process.”

“Volume is critical. It just is,” he continued. More than 100 new immigration judges will be hired this year, he said, and called on the judges to complete “at least 700 cases a year.”

In recent months Sessions has made other changes aimed at reducing the case backlog but have raised concerns over their potential impact on due process. These changes include:

• In a case Sessions referred to himself in January, Matter of Castro-Tum, he ruled that immigration judges can no longer exercise “administrative closure,” a mechanism used principally for docket management that allows them to suspend removal proceedings in appropriate cases
• In another case Sessions referred to himself, Matter of A-B- last month, he ruled that immigration judges can no longer consider domestic abuse and gang violence as factors in asylum requests.
• In Matter of E-F-H-L- – a case administratively closed in 2014 that Sessions revived and referred to himself in March – he ruled that judges are not required to hold hearings in all asylum cases
• Starting Oct. 1, immigration judges will be required to clear 700 cases each year, and to issue decisions within a few days (potentially increasing the number of oral decisions, which take less time than written decisions). If judges clear fewer than 560 they will be given an “unsatisfactory” rating.
• Sessions referred another case to himself in March that experts think could result in a ruling that may restrict the ability of immigration judges to use “continuances,” essentially kicking a case down the road, a mechanism judges often use so the case can be better prepared or resolved.

These changes are happening in the context of an immigration court system that has been overburdened and understaffed for years.

“Adding even more burden to the court without sufficiently staffing it up is going to mean that cases are going to take longer and longer, judges are going to be under more pressure,” says Barbara Hines, the former co-director of University of Texas Law School Immigration Clinic.

And when immigration judges are under pressure to resolve cases, she adds, “that doesn’t lead to careful deliberative decisions.”

Complex area of law

Immigration judges are expected to be physically on the bench hearing cases for 36 out of the standard 40-hour work week, says Carol King, a former immigration judge. But given how complex, and sometimes traumatic, the cases are, the time judges spend off the bench is just as important.

Immigration law “has been compared to tax law as one of the most complex areas of the law, and it only gets more so as time goes on,” says Judge King. “Cases have got so complex that it’s not really feasible to issue an oral decision in many cases.”

One example is what kind of groups have qualified for asylum protections under United States law. The law covered people who showed they would be persecuted on one of five specific grounds: race, religion, nationality, political opinion, and social group. Over the past 15 years “social group” came to include populations such as homosexuals and women subject to domestic abuse. Sessions reversed those years of legal evolution with his ruling in A-B-.

Increasing the speed with which immigration judges have to clear cases could exacerbate psychological issues many judges are already dealing with.

“You’re listening all day long every day to stories of torture and persecution and other kinds of trauma,” King says. “There are some judges that get numbness and get compassion fatigue and tend to disbelieve what they hear.”

One 2009 study found that immigration judges, especially female judges, are more burned out than doctors and prison wardens. It is something King did everything she could to avoid. But it came at a personal cost.

“I kept myself hyper-aware of the dangers of that, so I don’t think I numbed out in court, but I numbed out in my personal life,” she adds. “My family life and my psychological health suffered.”

Rushing judges means they could also not give enough judicial scrutiny to the cases in front of them.

“The biggest fear is you’re going to deport a US citizen, and that person ends up being harmed when they return to their country of birth,” says Eliza Klein, also a former immigration judge.

In one of her Klein’s cases before retiring in 2015, a young man who had served several years in prison for a drug crime came to court one morning. He said he didn’t want an attorney, he just wanted to sign his deportation papers and go back to Mexico. Both his parents were US citizens, but neither he nor the government knew when they had become citizens – if the man was under 18 at that time, he would be a citizen as well.

After lunch, the government lawyers came back and told her he was a citizen. She went to the detention center that afternoon and told him she was going to drop the case.

“He started sobbing,” she says.

“If I was in a rush,” she adds, it would have been easy to just sign the order without double-checking.

Streamlining the dockets

There are immigration judges who support the changes Sessions and the Trump administration are engineering. There are judges “who are happy about it, who feel they’re being given tools that they should have been given earlier,” Judge Klein says.

In a post for the Center for Immigration Studies, which supports reducing unauthorized immigration, retired immigration judge Andrew Arthur wrote that given the fact that an asylum case “can take anywhere between two hours and several days, [E-F-H-L-] will allow those judges to streamline their dockets and complete more cases in a timely manner.”

But while some judges appreciate that the executive branch is trying to ease the challenges the immigration court system faces, other judges believe the long-term solution is to take immigration courts outside the executive branch.

“It’s inherent in the system that was created that there’s going to be a lack of [judicial] autonomy, but I think it’s gotten worse,” says Susan Roy, a former immigration judge and a former prosecutor for the Department of Homeland Security (DHS), which represents the government in immigration court.

“The absolute instructions to the judges are very partisan and very pointed,” she adds. “This is more than just, we want you to grant more cases or we want you to deny more cases. These are specific types of cases we want you to rule a certain way or your jobs are in jeopardy.”

Judge Roy says she’s had first-hand experience of the political pressures that can be exerted on immigration judges. She was fired from her judgeship during the Obama administration for denying too many asylum cases.

It happened at a time when more Chinese migrants were applying for asylum than any other country, due in part to claims women were being forced to get abortions due to the country’s one-child policy. A series of recent precedent decisions from federal circuit courts held that many of those applicants became ineligible for asylum, and she also worked on the detained immigrants docket, many of whom had records of violent crime that made them ineligible for asylum.

“I was following the law, and I wasn’t going to violate the law,” she says.

While immigration judges do enjoy “markedly less” judicial independence than any other kind of judge, “that doesn’t translate into blind obedience to the” attorney general, writes Jennifer Koh, director of the Immigration Clinic at Western State College of Law in Irvine, Calif., in an email.

“Immigration judges are also bound to uphold the Constitution and to follow the laws set forth by the federal appeals courts in which they preside,” she adds. When “agency policy conflicts with those sources of law, then immigration judges need to still follow those laws.”

There have been calls in the past from immigration judges and lawyers to move the immigration court system to the judicial branch. Professor Hines says that, while she would support such a change, “it hasn’t been a movement right now.”

Schmidt is hoping that movement gains momentum soon. He was having dinner recently with some immigration judges, and they were discussing what they would do if a Justice Department policy conflicted with their constitutional oath.

“Do I do what I think is right and get fired? Do I go along to get along?” he asks. “When you have folks chatting that way you know you have a system in deep, deep trouble.”