Border security, backlogged courts and the political divide over immigration

KPRC 2 Investigates examines the “legal limbo” many migrants face

The pace of apprehensions along the southwest border has not slowed since reaching record numbers in fiscal year 2021.

A deep political divide remains over how to handle those caught illegally crossing the border, as well as enacting immigration reform as a whole.

Border numbers 1 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
Border number 2 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
Border Numbers 2 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)

KPRC 2 Investigates recently rode along with Border Patrol agents in the busiest sector for apprehensions, the Rio Grande Valley, which is roughly five hours southwest of Houston.

KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
KPRC 2's border crisis coverage (Copyright 2022 by KPRC Click2Houston - All rights reserved.)

Migrants living in a “legal limbo”

Thousands of immigrants are living in the United States in a state of limbo where they do not face the threat of immediate deportation, but remain in an undocumented status because of the way the federal government is treating these cases. An El Salvadoran woman, who asked to not be identified, said she crossed the border illegally but was only recently caught.

“My trip was very difficult, I left El Salvador because I was afraid of the gangs,” she said. “I was a nurse. The gangs knew exactly where we all lived. Any incident of violence, any injury, they would come knock on our door to tend to their wounds. If we didn’t, our lives were in danger.”

The woman told us she’s earned a living as a housekeeper, a hotel maid and by working in fast food restaurants. She said she also gave birth to two children while living in the U.S.

At the end of March she was a passenger in a car stopped by a Texas Department of Public Safety trooper.

“He asked for my license, I didn’t have a license so I gave him my passport,” she said. “In that moment, we saw an immigration car pull up. The first thing he said was, ‘You’re lucky you have a clean record, and you have two kids who are completely dependent on you.’”

She said she was eventually released and ordered to appear in Houston immigration court on April 22.

“‘We’re going to let you go, and it’s your decision to show up to court or stay on the run,” she said the officers told her.

When she arrived at court, she says no action was taken and was told to check in with immigration officials in a year.

“A lot of the times, there’s no pathways for people to get legal status and then they’re left in limbo,” said executive director of immigrant rights organization FIEL, Cesar Espinosa.

Espinosa said while this course of action keeps this woman’s family intact, it is far from a final solution. Congress still can’t agree on how to handle cases of those who’ve lived and worked in the U.S. for years and those who have children who are U.S. citizens.

Last year, the Department of Homeland Security shifted its policies to focus on giving prosecutorial discretion in removal cases. The memo, written by Secretary Alejandro Mayorkas, states efforts should be focused on those “who pose a threat to national security, public safety, and border security.”

For those living in limbo, these words produce only cautious optimism.

“I feel the same, like having and not having anything. I feel scared that one day they’ll say I have permission to stay. But if there is a new president, they may say no,” said the woman. “I want the opportunity to be in this country legally, to raise my kids and to watch them grow and keep moving forward with them.”

Backlog and Administrative Closure

Another problem facing Pres. Joe Biden’s administration is an historic backlog in immigration court. According to data compiled by the Transactional Records Access Clearinghouse at Syracuse University, there are more than 1.7 million cases pending in immigration court and it can take an average of 855 days for a case to be decided.

TRAC GRAPH 1 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)
TRAC GRAPH 2 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)

TRAC data also shows an increasing number of immigration court cases listed as “administrative closure.” This allows the government to essentially pause removal proceedings and remove a case from a court’s docket.

However, these cases can be re-opened at any time and do not go away. TRAC data shows there were 24,022 administrative closures in fiscal year 2021 and there have been 55,825 administrative closures through the end of April. Fiscal year 2022 runs through September and TRAC projects administrative closures could reach as high as 95,000.

TRAC GRAPH 3 (Copyright 2022 by KPRC Click2Houston - All rights reserved.)

“What they’re trying to do is clear out some of that docket so they can get to the more serious cases,” said Houston immigration attorney Charles Foster. “If anything, they’re clearing the docket so that they can take recent arrivals and get those cases heard sooner.”

Foster said while an administrative closure removes the immediate threat of deportation, it provides no other benefits. He adds if a different administration with different priorities enters the White House then these cases can be re-opened and removal proceedings started again.

“We cannot necessarily afford, nor want to detain people for years before they have their court hearing,” said Foster.

Espinosa argues this is a “lukewarm approach” to immigration reform and the issue of mixed status families.

“Having these cases administratively, these deportation cases administratively closed does the immediate help of keeping families together, but in the long run, still leaves families in limbo,” said Espinosa. “They also don’t have the opportunity to join fully into the workforce, to get social security, to get a status and to finally resolve their immigration issue. They still have to live in the shadows.”

Political battle and offered solutions

How to handle the influx of immigrants caught illegally crossing the border and the broader issue of immigration reform has produced a protracted and intense political battle.

President Joe Biden has fought for the passage of the U.S. Citizenship Act of 2021, which would provide a pathway to citizenship for millions of undocumented immigrants living and working in the states.

However, several Republican lawmakers have stated they are not willing to discuss immigration reform until the number of immigrants crossing the southwest border is addressed.

“What we see now is very unfair to people who played by the rules and waited for years to immigrate legally to the United States,” said Republican Texas Senator John Cornyn.

“Do you see any chance that the American public will get any type of immigration reform in the near term?” asked KPRC 2 Investigator Robert Arnold.

“Until we figure out how to come to grips with what’s happening on the border now, I’m not optimistic,” Cornyn said.

Cornyn, and U.S. Representative Henry Cuellar, a Democrat, filed the only bipartisan bill last year to address the current surge on our border.

The Bipartisan Border Solutions Act called for sending an influx of resources to the border to decide asylum claims faster instead of continuing to funnel those cases into an already backlogged immigration court system.

“Unfortunately, it hasn’t made a lot of progress, although we’ve been adding some bi-partisan co-sponsors to it,” said Cornyn.

Foster, who has worked with both Republican and Democratic administration on border reform, agrees that deciding asylum claims faster would help deter illegal border crossings.

“It could take, not one or two years, but three or four years before their case is heard. So that’s really outrageous, and that’s not much of a deterrent,” said Foster.

Cuellar said he secured funding needed to hire 100 more immigration court judges. Each judge will be supported by one attorney, one legal assistant and two other positions, according to a March news release from the congressman’s Office.

The Biden administration also announced it is going to start allowing asylum officers to make decisions on asylum claims to help speed the process and ease the burden on immigration courts.

If an officer denies an asylum claim then the case will go to an immigration court and a judge will have 90 days to make a decision on removal.

If an asylum officer grants protections then an immigrant does not have to go through the court process. The federal government expects this new rule to shorten the asylum process from years to months.

The end of Title 42

The public health measure known as Title 42 is set to end May 23. It is a provision of the Public Health Service Act of 1944 and is used to control the spread of a communicable disease.

Title 42 was enacted during Pres. Donald Trump’s administration back in March 2020.

The law typically mandates immigrants deported from the U.S. have to be returned to their home countries. Title 42 has allowed CBP agents to quickly return migrants caught illegally crossing the border to Mexico, regardless of nationality.

Those returned to Mexico under Title 42 are sent back for health related reasons, not for immigration violations.

Several Republican-led lawsuits are trying to stop the Biden administration from ending the provision, claiming it will lead to an even greater surge in immigrants trying to cross the border illegally.

The concern is the U.S. does not have the capacity to detain all those who are not from Mexico while their cases work through the immigration court system, and therefore will have to be released pending a decision on their removal.

Immigration rights advocates have pushed for the end of Title 42, saying it prevents immigrants from legally claiming asylum.

In fiscal year 2022, 548,965 immigrants have been returned to Mexico under Title 42.

When announcing a multi-point plan to address border security. DHS officials wrote, “We anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants.”

You can read DHS’s plans for border security below.

SEE ALSO: Migrants apprehended at Texas-Mexico border hits historic high, federal officials say; Watch KPRC 2′s team coverage here

About the Author:

Award winning investigative journalist who joined KPRC 2 in July 2000. Husband and father of the Master of Disaster and Chaos Gremlin. “I don’t drink coffee to wake up, I wake up to drink coffee.”