HOUSTON – Despite months of debate, no definitive answer has emerged as to how a massive backlog of immigration cases can be trimmed.
At the end of May, the backlog of immigration cases swelled to more than 700,000 according to the Transactional Records Access Clearinghouse, or TRAC. The non partisan research group at Syracuse University also posted data showing the average wait time for a case in immigration court climbed to 700 days.
TRAC data shows Texas alone has a backlog of more than 100,000 cases with an average wait time of nearly 900 days.
“Their calendars are so busy,” said Houston immigration attorney Brandon Roche.
Roche, who has represented children seeking asylum in the United States, said the wait time for a hearing can be years in many cases.
“If the child is asking for asylum, in many situations the earliest date is going to be two to three years out,” Roche said.
The Executive Office of Immigration Review, or EOIR oversees the immigration court system. EOIR does not allow court proceedings to be recorded, only observed. Channel 2 Investigates recently observed proceedings in one immigration court.
During the proceedings, we observed an attorney who represented two unaccompanied minors from Central America.
The attorney told the judge both of her clients applied for asylum and were denied. The attorney, who declined an on-camera interview, was requesting a hearing to appeal the denials.
The judge set a hearing for the cases in February 2021. The attorney told KPRC her clients both entered the U.S. in 2016. That means the teens will have been in the U.S. for five years before a final decision is reached as to whether they will be allowed to stay.
Some congressional leaders have argued the backlog and extensive wait times are, in part, fueling illegal immigration.
“The word is out,” said Houston area Republican U.S. Rep Ted Poe. “They know that, and I think some people are gaming the system.”
Roche disagrees with that premise.
“They're not thinking that far ahead. They're thinking, 'Get to the border. Survive. Then figure it out,’” Roche said.
Poe and other Republicans want to double the number of immigration judges to help cut down on the backlog and decrease waiting times for cases. Some congressional leaders have argued that, while enforcement actions have ramped up on the border, an equal number of resources has not been applied to the courts.
“The chokepoint is the fact there are not enough judges to hear the cases,” said Poe. “It’s not the judges’ fault. They are very hardworking. They are working long hours to try to process these cases.”
According to EOIR, there are 350 immigration judges presiding over 60 immigration courts across the country. The Consolidated Appropriations Act of 2018 provides funding for an additional 100 judges and associated staff.
A June 2017 Government Accountability Office report noted it was taking an “an average of 742 days to hire new judges from 2011 through August 2016.”
In a statement to KPRC, EOIR officials said Attorney General Jeff Sessions announced in April 2017 a “new, streamlined hiring plan” that has since reduced the hiring process to 10 months. EOIR officials also wrote the goal was to further cut down the time it takes to hire an immigration judge to six to eight months.
Poe said more judges would also help with the skyrocketing number of asylum applications from those facing deportation.
Immigrants have two routes to claim asylum: affirmative or defensive. Affirmative asylum applications are filed with U.S. Citizenship and Immigration Services. Defensive requests are filed in immigration court as a defense to an immigrant’s removal from the United States. This second route happens most frequently when a person has been caught crossing the border illegally or has been denied through the affirmative process.
According to USCIS, the number of defensive asylum applications rose from fewer than 13,000 in 2010 to more than 119,000 in 2017. USCIS reports there are currently 316,000 cases in immigration court with pending asylum applications.
However, President Donald Trump has pushed back against hiring hundreds of new immigration judges.
“When people come in illegally, they have to go out,” the President stated during a news conference at the end of June.
A day before making that statement, the president tweeted, “Hiring many thousands of judges, and going through a long and complicated legal process, is not the way to go - will always be (sic) disfunctional. People must simply be stopped at the Border and told they cannot come into the U.S. illegally.”
In April, immigration judge and president of the National Association of Immigration Judges, A. Ashley Tabaddor delivered remarks before the Senate Judiciary Committee, Border Security and Immigration subcommittee. Tabaddor told the subcommittee she carried a caseload of 2,000 pending cases and “immigration courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years.”
Roche believes hiring more judges can at least help cut down on wait times.
“Newer judges are going to have openings as quickly as four months away,” Roche said.
However, Roche said holding hearings at a faster clip can have an adverse impact on unaccompanied children fleeing violence and abuse. Roche said properly preparing for asylum hearings is a lengthy process
“If they set us for three months out, it's really hard for me to support an asylum claim,” Roche said.
He also said expedited timelines make it difficult in cases in which an unaccompanied minor is applying for special immigrant juvenile status. Roche said this involves filing a claim of abuse, neglect or abandonment in state court.
“The idea being we're not going to send them back to an abusive household,” Roche said.
Roche said it takes months to get a hearing in state court and requires attorneys to obtain documentation from a child’s home country. “A child is not going to think ahead before they're fleeing persecution, before they're fleeing violence to say, 'Oh, I should gather certain legal documents to bring with me and present to my lawyer,’” Roche said.
Roche said immigration judges are becoming increasingly reluctant to delay a case while a child pursues a ruling in state court. The federal government has also been narrowing the grounds on which a person can apply for asylum.
To view TRAC data for yourself, go to: http://trac.syr.edu/immigration/.