October 26, 2016
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Immigration Courts Swamped By Backlogs

New America Media, News Report, Valeria Fernández

PHOENIX, Ariz. – It is not uncommon for attorney Marianne Gonko to get a hearing date in the Phoenix immigration court for 2014.

“I know I’ll be married to a case for two to three years,” said Gonko. “We used to have two judges, now we have three and their calendars are loaded.”

Judicial vacancies and shortages of court staff, coupled with the increased detention of immigrants that started under former President Bush and continues to grow under the Obama administration, are part of the reason for the exponential caseload.

The Phoenix immigration court has a list of 4,710 pending cases to be heard. The length of time for a case to get a hearing in this court could be 365 days. In the meantime, situations change and sometimes even the law changes.

Immigration advocates say this becomes an expensive and stressful ordeal for individuals and the family unit, while in some instances it buys times for those who have no other remedy but legalization through immigration reform.

For some of Gonko’s clients, the long wait causes hardships. One of them, a woman from Kenya, had been waiting for a year to get a green card granted to victims of domestic violence, which requires going through the court. Recently, the judge gave her a court date in 2011.

“She hasn’t been home in many years. She’s worried about her family there and wants to bring her children to the United States,” Gonko said. “This is really hurting her.”

The long backlog of immigration cases in Phoenix is not an anomaly. Across the rest of the nation, pending cases in immigration courts have reached a record high of 228,421, according to an analysis of court data by the Transactional Records Access Clearinghouse (TRAC). The report, issued in March, shows that the case backlog was up 23 percent since the end of fiscal year 2008 and 82 percent from 10 years ago.

The 58 immigration courts in the nation operate under the umbrella of the Department of Justice through the Executive Office for Immigration Review (EOIR).

On average a case in court now takes 439 days to be resolved, according to the TRAC analysis. A review by the American Bar Association concluded that each judge handles about 1,200 cases per year.

And wait times vary from state to state and city to city. Los Angeles court cases take an average of 713 days, while cases in Florence, Ariz. have an average wait time of 75 days.

Patricia Mejia, an immigration attorney in Tucson, where the percentage of cases sent to court grew by 279 percent from 2008 to 2009, says the backlog is in part a result of the increased involvement of local police in enforcement of immigration laws.

“People go to buy milk and they never return,” she said. “They practically disappear during their daily life.”

The backlog can affect individuals in different ways, depending on their situation. For example, an individual who makes a claim to stay in the United States based on a family relationship to a U.S. citizen could lose that claim if the person dies during the waiting period, says attorney Margarita Silva.

“The ramifications of the backlog affect U.S. citizens, too,” Silva said, based on cases in which an applicant is the breadwinner for an entire family.

For immigrants in detention centers, the delays could factor into their decisions about pursuing a legitimate claim to remain in the country, said another attorney.

“This has a very serious effect on the individual’s ability to make well-reasoned decisions,” said Anthony Pelino, a Phoenix-based immigration attorney who handles cases in the Florence and Eloy Detention Centers. “They might become worn down and choose to abandon a case,” 

For Juan Carlos Davalos, 37, whose next court date is in 2014, the delay buys time. “If they deport me tomorrow to Mexico, I’ll leave empty handed,” he said. Davalos was detained for driving under the influence of alcohol and sentenced to spend one day in jail -- which led him to be transferred to immigration custody. He spent 17 months in the Eloy Detention Center and knows all too well that the immigration justice system is not for the weak of heart.

“Amnesty is all we wanted while we were inside,” he said. “And we extended our court dates hoping that would happen.”

Now that he is free on bond, his immigration attorney was able to apply for him to obtain a work permit as he fights his deportation. Davalos is married to a U.S. citizen, and despite having lived in this country for close to 20 years, he has few legal routes for legalizing his status. One is to claim relief because his children were born in the United States, but he would have to prove that they would suffer an extreme hardship if he were deported.

Delia Salvatierra, an immigration attorney in Phoenix, believes that there is at least one more positive reason behind the backlog. In the past, local police would turn over detained immigrants, they were turned over to Immigration and Customs Enforcement (ICE) that expedited their repatriation. But now, more cases are being referred to court for review, she said.

“If they’ve gotten to the judge, it’s a miracle. Most of them sign a voluntary departure,” she said. “These are families being reunited and it gives them an opportunity if they leave to be prepared. That’s a positive change in the philosophy of ICE and it’s welcomed.”

But other legal advocates are concerned that the backlog shows a systemic failure. 

“A system shouldn’t function by dysfunction,” said immigration attorney David Leopold, president-elect of the American Immigration Lawyers Association (AILA). “What is troubling is that the same person that is happy that his case doesn’t come up until 2014, in another part of the country [it] would be coming tomorrow. We need a system that treats everybody fairly,” Leopold said.

That wide variation from court to court creates a perception that the system is not fair, and that itself is a problem, said Laura Lichter, second vice-president of AILA.

A study commissioned by the ABA found that the EOIR is understaffed. There are also disparities in the rate of favorable decisions, suggesting that success might depend less on the merit of the case than on the judge who is assigned to hear it.

Lichter said the absence of legal representation for immigrants often opens the door for the mishandling of cases. About 84 percent of detained immigrants with a case pending before the court didn’t have an attorney, according to the ABA.

“These are extremely complicated proceedings,” she said. “In some cases they can take your family away and your community away,” 

The EOIR is attempting to address the backlog. As of March, the agency had 238 judges available. By the end of fiscal year 2010, it aims to have 280 judges.

Thomas Snow, acting director of the EOIR, called the TRAC analysis on the court backlog “unbalanced” in a letter, citing that it failed to acknowledge the efforts made by his organization to fill judge vacancies.

“It is our most important priority to fill this positions,” said Kathryn Mattingly, an EOIR spokesperson.

For immigration advocates, the changes have to go beyond wait times and judicial vacancies. They argue that the backlog is symptomatic of a national immigration policy that is broken and underscores the need for comprehensive immigration reform.

“The administration thus far has carried on the policies of George Bush -- in fact deported more people and put more people out of work -- based on what they call ‘immigration enforcement,’” said Leopold.

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