President Biden’s attempt to deal efficiently with a new surge of migration following the end of Title 42 pandemic restrictions has focused new attention on a severe shortage of judges, the result of longstanding neglect that has overwhelmed the immigration court system with a backlog of more than two million cases.
The court system is riddled with yearslong delays and low morale as a work force of about 650 judges struggles to keep up with the volume of immigration cases, leaving undocumented immigrants who have long waited in the United States in limbo.
The bottleneck shows how the challenges of dealing with a surge in immigration do not end at the southern border. Even as scrutiny has focused on how Border Patrol agents will manage crowds of migrants, public officials and immigration experts say that bolstering the invisible work force of immigration judges is crucial to reforming the system.
Mr. Biden has made some progress — hiring more than 200 judges since he came into office — but is still falling short on his campaign pledge to double the number of immigration judges. Some of the judges will be working seven days a week for a time while the administration confronts the new surge, according to the Justice Department.
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
The backlog of immigration cases grew to one million in 2019 during the Trump administration, but it has increased since then to more than two million cases, according to data collected by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The average time it takes to close an immigration case is about four years, according to the database. But some judges say they have cases that have been pending for more than a decade.
Alejandro N. Mayorkas, the homeland security secretary, said this week that the backlog was a “powerful example of a broken immigration system,” as he pleaded for Congress to pass immigration reform legislation.
In his 2023 budget request, Mr. Biden requested funding to hire 200 more judges. Congress only appropriated funds for an additional 100 judges, for a total of 734 positions. The government is still working to fill the slots.
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
The judges essentially form the backbone of the nation’s immigration system. The group is under a division of the Justice Department, rather than the judiciary branch, and operates in nearly 70 courts around the nation. Many of the immigration cases are handled remotely, however, and some judges report that the software they use is prone to malfunctioning.
“I don’t think the United States has ever treated the adjudication for any immigration benefit as a priority for its immigration policy,” said Cristobal Ramón, an immigration consultant who has written for the Migration Policy Institute and the George W. Bush Institute.
The Title 42 border restrictions, enacted by the Trump administration, allowed border agents to rapidly turn away migrants without providing them a chance to apply for asylum, on the grounds that it would prevent the spread of Covid-19.
Now that the restrictions have been lifted, many migrants will once again be able to apply for asylum by securing an appointment through an app or by crossing and convincing an immigration officer that they have a credible fear of persecution at home. Regardless, they will likely wait for years in the United States before getting a resolution in their case.
Typically, after migrants cross the border, they are questioned by an asylum officer to determine if they have a credible fear of persecution at home. After meeting the standard, many are released into the United States and wait years until they are heard in court.
As president, Donald J. Trump derided the American asylum program, saying migrants fleeing poverty and corruption were part of a “scam” and a “hoax.” As he sought to curb illegal and legal immigration, Mr. Trump imposed a quota of completing 700 cases a year.
The union representing the nation’s immigration judges said that quota came at the expense of due process.
The union filed a labor complaint against Mr. Trump’s Justice Department after the agency’s executive office for immigration review sent court employees a link to a blog post from a white nationalist website. The post included antisemitic attacks on judges.
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or border patrol agent.
Most asylum applications are not granted, even if a person passes the initial credible-fear screening. Migrants must meet a much higher standard in court to be granted asylum, proving that they were or would be harmed based on their race, religion, nationality or political opinion. Fleeing solely for economic reasons does not make a person eligible for asylum.
Once a case is denied, the person is subject to deportation.
The Border Patrol is already holding 28,000 migrants along the border in detention facilities, many of whom will ask for asylum.
“What happens to the cases left behind?” said Mr. Honeyman, who served in Philadelphia. “It seems overwhelmingly impossible to ever reach some kind of equilibrium where enough cases move along and justice is served.”
Mr. Biden removed the Trump-era quotas on immigration judges when he came into office and in 2021 instituted a system to try to streamline the processing of asylum cases.
The Biden administration placed about 110,000 cases involving new arrivals on a dedicated docket, with the aim of finishing them within a year. About 83 percent of those cases were closed but just 34 percent of the migrants found representation, according to the Syracuse database. Migrants have the right to an attorney, although the government is not required to pay for legal representation. Only 3,000 of the migrants were granted asylum.
Ms. Klein now fears her former colleagues will once again be forced to hurry through dozens of cases at a time.
“You’re being treated like all you’re doing is numbers. You’re just finishing a certain number of digits per day,” Ms. Klein said. “There has been a significant drop-off in the ability to take pride in your work.”
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