Immigration Judge: Courts Overwhelmed & Under-Resourced

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Shaun Lawrence of Jamaica takes an oath of citizenship during a naturalization ceremony at the Chicago Cultural Center on July 3, 2013 in Chicago, Illinois.
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In Washington, the tug-of-war over our country's immigration laws drags on.

Comprehensive efforts at reform have stalled in the House, and until Congress passes new legislation the immigration court system, and the immigrants within it, continue to suffer.

It's estimated that there is backlog of hundreds of thousands of cases across 57 courts nationwide, and this month, the number of deportations of undocumented immigrants is set to top 2 million since President Barack Obama took office.

Overwhelmed and under-resourced, immigration judges say change is necessary. Today The Takeaway speaks to Judge Dana Marks, president of the National Association of Immigration Judges and an immigration judge in San Francisco for 27 years. Judge Marks weighs in on the size of the backlog and what reform will mean for the court system.

"We believe we are at a crisis point in terms of lack of resources," says Judge Marks. "Public debate rages on about exactly what complexion the law should have in terms of what rights and benefits are afforded to non-citizens of the Untied States, but the immigration courts are often forgotten piece of the immigration removal process."

Judge Marks says though more money has been spent on the immigration removal process than on any other federal law enforcement initiative, immigration courts "have remained a stagnant after thought in terms of funding." She points to figures she's currently facing on the bench—the judge says she currently has 2,500 pending cases, meaning it would take an individual more than year to even get a first hearing. After the initial arraignment-type hearing, the case must wait another two and a half to three years before it is on the final docket. 

In all, Judge Marks says there are about 360,000 cases pending before about 233 sitting immigration judges nationwide. In addition to very long wait times, immigration court also offers several other differences from other court proceedings.

"The biggest difference is the fact that people do not have a right to appointed council—they have the right to provide an attorney at their own expense," says Judge Marks. "Nationwide, 60 percent of the cases proceed to hearing without an attorney representative. If you consider only the detained docket—people who are incarcerated during the course of their hearings—85 percent of those individuals are not represented by council."

Other differences Judge Marks points to is that of the official record—unlike traditional courts, immigration courts have no court reporters and proceedings are instead recorded through digital audio recorders, meaning that judges must make decisions without a written transcript.

"We have another layer of complexity that most courts don't face: The vast majority of the cases that come before an immigration judge are presented through a foreign language interpreter," says Judge Marks. 

In 2009, the American Bar Association made a number of recommendations to address some of these concerns, such as hiring an additional 100 judges—something that never happened. Additionally, more training was recommended to standardize the training for judges, something that also did not become reality.

"It doesn't serve anyone's interest to not have adequate resources at the immigration courts," says Judge Marks. "Some people are cynical and believe that non-citizens benefit from the delay and try to encourage delay in the system because it allows them remain longer. But the judges don't believe that is true on the whole. People with meritorious cases can suffer grave injury to their case because of the fact that they can't bring their case to hearing."

Judge Marks says that U.S. immigration law can offer certain benefits for non-citizens, but they require things like a qualifying relative who is a minor or a qualifying relative who will suffer exceptional or extremely unusual hardship, which is often medically related. Delaying hearings can cause individuals to lose that standing.

"People lose their qualifying relatives due to the passage of time because they reach the age of majority, or sometimes tragically due to death because their case is not heard in a timely fashion before their loved ones died," says Judge Marks.

Judge Marks says that though the Justice Department's Executive Office for Immigration Review prioritizes the cases of detained non-citizens so that they're not languishing in a detention facility, the entire process can still take years to sort out. 

"There are times that immigration judges are called upon to make very difficult decisions," says Judge Marks. "There is no doubt that the immigration laws are extremely strict of the present time. For example, someone convicted of petty theft with a prior conviction is considered to be an aggravated felon under the immigration definition of that term. That has very harsh consequences. That can mean that someone who has been a lawful permanent resident from the time they were a small child and had no other criminal activity except for repeated petty thefts can be precluded from remaining in the United States, which may be the only country he or she knows. That person can in essence be exiled from the country that has become their home."

Judge Marks adds that others on the bench are trying to push forward initiatives that would provide them with more discretion when issuing a verdict or decision.

"We're members of our local communities—we don't want to allow someone that's going to be a danger to the community to remain anymore than people in Congress do," she says. "But we need to have a more refined tool to use to evaluate that, rather than the broad categories which simply preclude the immigration judge from using his or her judgement to make that determination. We need more discretion in the law to allow the judges to weigh those factors and come to a fair and just result."