In the Supreme Court’s case of Demore v. Kim, the government claimed that 85% of cases before an Immigration Court “are completed in an average time of 47 days and a median of 30 days.” In that case, the Supreme Court found constitutional the statute which makes detention of some immigrants during removal proceedings mandatory (meaning that no judge has the authority to release the immigrant on bond, no matter what the circumstances). To support its finding, the Supreme Court relied heavily on the government’s statistics which supposedly showed that Immigration Court cases were completed very rapidly.
Almost all people who have been to Immigration Court had the same reaction to the statistics cited in Demore. Pure unadulterated disbelief. This disbelief was not unwarranted. Syracuse University’s “Trac Immigration” project, considered to be the most reliable of neutral sources, found that the average wait time for a hearing, as of early 2010, was 439 days – basically 10 times the government’s claimed time. And that doesn’t include appeals. I’m not accusing the government of intentionally lying to the Supreme Court to support its case, but…..o.k., yes, I am accusing them of doing just that.
Regardless, the fact remains that Immigration Court is remarkably inefficient. There are several reasons for this, many of which could be rectified if the will was there.
- Number of cases – There are far too many people being put into removal proceedings to start with. The new “Obama policy” will hopefully address that, but more needs to be done. Many people who could obtain legal status before USCIS are funneled to the Immigration Court system by overzealous officials at USCIS, ICE, and Customs and Border Patrol. Often, after two or three preliminary hearings before an Immigration Judge (spanning many months or more), the Judge simply funnels the person back to USCIS.
- Lost files – The number of times the DHS lawyer (Trial Attorney, or “TA”) shows up for a hearing without the file is shockingly high. It happens regularly. This is not the individual TA’s fault, but rather, is the fault of the DHS file storage system. Because of the huge number of cases pending, the TA’s office usually cannot store the files in their office. Instead, files are sent to an archives somewhere else. Apparently somewhere very very very far away. The TA then has to “order” the file prior to the hearing. Sometimes the file doesn’t show up in time. Sometimes, they forget to order the file. Or the wrong one shows up. When this happens, the Judge has to adjourn the case – usually for months or more – to wait for the file.
- No electronic files – In federal court, everything is done electronically. Instead of mailing briefs, exhibits, motions, etc., lawyers can just upload their documents on the federal court’s website. This makes things remarkably more efficient. Files don’t get lost, storage space is reduced from a warehouse to a computer disk, lawyers and judges can access information and filings with a few mouse clicks, etc., etc. It would make sense that immigration courts would do the same thing. Unfortunately, they haven’t. And it doesn’t seem to be in the near term plans. I had a discussion with a TA a few weeks ago and asked why the TA’s office doesn’t make everything electronic. He said they tried a few years ago, but the private contractor that they hired to digitize the records ended up scanning each page as an individual document. So when the TA wanted to look at a 1,000 page file, he or she would have to open up 1,000 separate documents, instead of just one.
- Unnecessary bureaucratic procedures – Many of the immigration court procedures are unnecessary and unnecessarily time consuming. The Immigration Court is part of the Executive Office for Immigration Review, itself a subdivision of the Department of Justice. The Trial Attorney’s office is part of the legal department of Immigration and Customs Enforcement, which is a subdivision of the Department of Homeland Security. Yet, to file an application before the Immigration Court, it must be filed with USCIS. Sometimes applications need to be mailed to several different addresses, and done multiple times. To get a hearing, an immigrant must be fingerprinted by USCIS, but each local Trial Attorney has a different procedure for scheduling an appointment. And yet, there is no publicly available documentation of each local office’s procedures. This ends up creating a massively complex procedural morass which cause huge delays as immigrants, lawyers, and judges try to navigate their way through the maze.
These are just some of the reasons for the massive delays. There are others, including too few judges, too few clerks, not enough free legal services, unprepared lawyers, etc., etc. If the political will and organization were present, many of these problems could be addressed. Importantly, fixing the causes of the delays would provide major financial savings too – especially if the court were to implement electronic records. It would be a win win for all, including the taxpayers. Until then, we’ll just have to wait and wait and wait.