In the last decade, the government has mounted a historic buildup of agencies responsible for immigration enforcement — namely, Customs and Border Protection and Immigration and Customs Enforcement, which are lately getting a combined $18 billion in the budget each year.
Struggling to keep up, however, are the 58 immigration courts that decide whether immigrants can legally stay in the country.
During the past decade, the number of judges has increased about 18 percent, from 212 to 252, but that number has been declining in recent years. Staff to the judges is scarce: Only one law clerk for every four judges on average, according to Dana Leigh Marks, who heads the National Association of Immigration Judges.
“We are very, very understaffed,” Marks said in an interview, stressing that she was speaking in her role at the union’s president, not as an immigration judge.
Donald Kerwin, executive director of the Center for Migration Studies of New York, a research and educational organization, echoes the concern.
“Looking at the system, there’s a huge imbalance in resources,” he said. The basic problem, Kerwin said, is an “enormous enforcement infrastructure feeding into an adjudication system that’s not well-funded.”
The result: a huge backlog of cases that is growing fast.
As of January, almost 324,000 cases awaited resolution, according to government data compiled by the Transactional Records Access Clearinghouse, a private organization based at Syracuse University. That is roughly double the number from a decade ago.
And the average wait time for a decision is about a year and a half, TRAC figures show.
Funding for the Justice Department’s Executive Office for Immigration Review — which houses the immigration court system — totaled about $302 million.
For fiscal 2013, the Obama administration requested about a 3 percent increase, to $310 million. Like other agencies, however, the Justice Department is working under a continuing resolution that generally leaves spending at last year’s levels.
Not all deportation cases go before a judge. Immigrants arrested near the border, for example, may simply be sent back. In addition, the courts handle asylum petitions, government requests to deport foreign-born criminals and appeals from people seeking to avoid deportation.
Concerns about the courts’ performance are long-standing.
“They’ve struggled under heavy caseloads, insufficient staffing, technological weaknesses,” Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said at a May 2011 hearing that marked the last time Congress took a close look at the system.
Although the courts “have come a long way,” Leahy said, he also acknowledged that judges have come under fire for shoddy decisions and anti-immigrant bias.
In response, Juan Osuna, now director of the immigration review office, touted efforts to step up hiring and improve training.
DOJ, he said, was “fully committed to ensuring that the immigration courts have the appropriate number of judges and staff needed to support our mission within the confines of an admittedly difficult budget climate.”
But as the Justice Department wrestles with tight funding and a long-term hiring crunch, the 252 judges now on the bench are down from the 268 serving at the time of the Senate hearing.
The Obama administration is proposing to add another 140 judges by 2016, according to a leaked draft of a White House plan obtained by USA Today, a sister publication of Federal Times.
As part of any comprehensive immigration reform legislation, the National Association of Immigration Judges also wants to make immigration courts independent of the Justice Department, a step Marks said would make it easier for lawmakers to see what’s needed “to do our work.”
The idea has the backing of the American Bar Association, but the Justice Department’s immigration review office is opposed.
While the American Immigration Lawyers Association, another influential voice, is on record as favoring independent courts, that step wouldn’t fix problems such as insufficient resources and the fact that many people in the system go through the proceedings without an attorney, the organization’s president, Laura Lichter, said via email last week.
Most pressingly, the courts are facing the same across-the-board cuts that took effect Friday for the rest of DOJ and most other federal agencies. Already, Marks said, judges have been notified of possible furloughs of up to 14 days.
Between the budget crisis and competing demands for federal funding, Kerwin said, the argument that courts could get enough money to adequately confront the backlog issue “is far-fetched at this point.”