Opinion, Berkeley Blogs

Trump’s unintended support for immigrant civil rights?

By Sarah Lakhani

Amid the predictably restrictive border policies enumerated in President Trump’s seven-page document recently delivered to Congress is a proposal to hire 370 additional immigration judges to ostensibly “ensure swift return of illegal border crossers.” While on the surface this may sound like another brick in the anti-immigrant border wall being constructed by the Trump administration, it could actually turn out to be a much-needed step toward civil rights and justice for immigrants.

Coverage of the “immigration principles” outlined by Trump has focused on the outrageous and controversial proposals, which include more restrictive border policies for Central American youth and other asylum seekers, an expansion of the already-extreme aggravated felony grounds in immigration law, the curtailment of legal immigration generally and family-based migration in particular, funding for as many as 10,000 more Immigration and Customs Enforcement officers, and the allocation of more resources to the notorious border wall.

Delving a bit deeper into Part 1 (“Border Security), section D (“Ensure Swift Border Returns”), we see the explanation that “[i]mmigration judges and supporting personnel face an enormous case backlog, which cripples our ability to remove illegal immigrants in a timely manner. The administration therefore proposes providing additional resources to reduce the immigration court backlog and ensure swift return of illegal border crossers.”

Trump’s argument to hire hundreds more immigration judges hinges on the erroneous—and indeed illegal—notion that the modus operandi of judges is to deport immigrants. In reality, immigration judges issue cancellations of removal and other deportation relief in addition to removal orders. This bears remembering.

Regardless of his motives, Trump hit on a significant, widely acknowledged problem in the contemporary U.S. immigration system: immigration courts are in a state of crisis, which is at least partially the result of a dearth of judges. Retired immigration Judge Paul Wickham Schmidt recently warned that the courts were on “the verge of collapse,” threatening to implode under the weight of over half a million pending cases. The backlog, which has been steadily climbing over the past thirty years, spiked from 174,935 in 2007 to its current unprecedented high of 632,261. To make matters more concrete, longtime San Francisco immigration Judge Dana Leigh Marks shared this summer that she has over 3,000 cases on her docket; it often takes as long as four or five years for her to finally hear a case and make a decision on the merits. Nationwide, the average wait time for a hearing is 672 days, nearly two years.

This logjam hurts immigrants in concrete, visceral ways. The psychic challenges of being undocumented or liminally legal with the prospect of deportation looming are well known. Those who languish in detention facilities while their removal proceedings are pending face this same limbo with the added oppression of physical incapacitation, often in appalling conditions. Delays because of the immigration court backlog may diminish immigrants’ ability to produce witnesses or evidence in support of their relief applications. Due to the length of some cases, immigrants who may have been eligible for relief earlier in their cases may lose eligibility by the time their cases are heard because of changed circumstances.

For instance, sometimes one must have a “qualifying relative” to obtain a benefit and that relative may become ill and die. Other times the qualifying relative must be underage and, via the passage of time, that person becomes an adult. Immigrant youth may “age out” of relief opportunities limited to individuals defined as children under our immigration laws.

The backlog also strains immigration judges, making exceptionally tough work more daunting. The content of immigration cases is often disturbing and emotionally wrenching, and immigration law is complicated to apply. The stakes are very high: immigration judges decide the fates of individuals who face separation from their families and deportation to countries that are unknown to them and/or plagued by extreme violence. Yet the immigration courts are severely underresourced, with judges lamenting an inability to sufficiently prepare for cases and carefully deliberate on outcomes. This is why Judge Marks likens her work to hearing “[d]eath penalty cases in a traffic court setting.”

The pressures of immigration judging today create the potential for errors and bias in decision-making as adjudicators rush to complete cases. It also leads to low morale, job-related stress, and emotional burnout, causing judges to retire or leave at the peak of their careers. Retired immigration judges caution that the provision of adequate due process protections hangs in the balance for immigrants who must plead their cases in this context.

With all this in mind, Trump’s proposal to hire more immigration judges is well founded. It is also one that immigration proponents and opponents may agree on, so it represents a promising target for reform. But the proposal is not novel. Immigration courts have been understaffed for at least a decade, and judges and other experts have previously called for more judge hiring. The Executive Office for Immigration Review (EOIR), the administrative agency responsible for adjudicating immigration cases, has endeavored to hire more immigration judges for quite some time. This suggests that there are other factors contributing to the paucity of immigration judges, and that other solutions should be considered.

In its June 2017 assessment of the U.S. immigration courts, the Government Accountability Office (GAO) found that 39 percent of immigration judges are currently eligible for retirement. The GAO also noted that EOIR “does not have efficient practices for hiring new immigration judges, which has contributed to immigration judges being staffed below authorized levels.” GAO computed that it took an average of 742 days to hire new judges from 2011 through August 2016.

The GAO report conveys that the immigration court backlog may have roots in flawed hiring practices. EOIR recently revised its hiring process for immigration judges, but the new schema may lead to the hiring of unqualified immigration judges, which could perpetuate the case backlog.

Judge applicants must demonstrate three of the following: “knowledge of immigration laws and procedures, substantial litigation experience, experience handling complex legal issues, experience conducting administrative hearings, and knowledge of judicial practices and procedures.” This suggests that immigration judges need not be immigration law experts. Since “knowledge of immigration laws and procedures” appears to be a non-mandatory hiring factor, new immigration judges may not even need a passing familiarity with immigration law.

Hiring immigration judges who are unfamiliar with the convolution and emotional challenges of immigration legal work may be ill-equipped to manage the challenges of their new posts. At best, they may flee chambers when they realize the task at hand. At worst, they may issue categorically wrong decisions that carry immeasurable negative consequences.

Hiring more judges is a critical piece of the immigration reform puzzle. But more hiring carried out in a vacuum is unlikely to make a meaningful dent in the case backlog. With such a large contingent of immigration judges poised to retire and many immigration judges struggling under current court conditions, the President, Attorney General, and other stakeholders should alter hiring strategies and enhance judge work conditions. Hiring new judges is a good idea, but it does not make sense to appoint judges without significant immigration experience. Improving resources in chambers by hiring additional law clerks and court personnel and providing more training opportunities would encouraged experienced judges to stay and new judges to acquire expertise and stick around. These changes would promote judge well-being and bolster due process protections for noncitizens. Elevating work conditions in the courts may also encourage more people to become immigration judges in the first place.

Sarah M. Lakhani, Ph.D., is a sociologist and a J.D. candidate at the University of California, Berkeley, School of Law. She is also a Human Rights Center Fellow at UC Berkeley School of Law and an Affiliated Scholar at the American Bar Foundation.