Immigrants wait overnight next to the U.S.-Mexico border fence to seek asylum in the United States on Jan. 07, 2023 as viewed from Ciudad Juarez, Mexico. As of August, there is a backlog of more than 2.6 million pending immigration cases, according to the Transactional Records Access Clearinghouse, a research center at Syracuse University. (John Moore/Getty Images)
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
“An independent board will begin the process of healing this broken system,” she said.
As of August, there is a backlog of more than 2.6 million pending immigration cases, according to the Transactional Records Access Clearinghouse, known as TRAC, a research center at Syracuse University. TRAC also found a 19% increase for the month of August in new immigration court cases, to 180,000 just for that month.
Congress has created other such entities in the past, such as the U.S. tax court in 1974, which is independent from the executive branch.
The chair of the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, Democratic Sen. Alex Padilla of California, agreed that Congress should legislate to make immigration courts separate from the Department of Justice.
“This means that with each new administration, the immigration courts and the attorneys appearing before them experience a whiplash of policy changes and political decisions,” Padilla said.
He acknowledged that it would be an uphill battle, with the House controlled by Republicans and Democrats holding a slim majority in the Senate.
Padilla added that Congress should provide funding for immigration judges to have sufficient clerks and staff to help with caseloads.
There are about 650 immigration judges located in 69 immigration courts and three adjudications centers across the U.S.
Another issue is that not every state has an immigration court. Only 28 states do, meaning immigrants who have pending cases might have to travel thousands of miles to show up for their court dates.
McKinney said many of his clients have to travel two to five hours to get to their court hearings.
States that do not have an immigration court include Alabama, Alaska, Arkansas, Delaware, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Mississippi, Montana, New Hampshire, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Vermont, West Virginia, Wisconsin and Wyoming.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly affect their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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