Politics & Policy

Deportation Court Backlog Has Doubled Since 2008

More than 375,500 cases are pending in fiscal year 2014.

The number of pending deportation cases in federal immigration courts’ backlog has more than doubled since the end of the 2008 fiscal year, according to data compiled by a Syracuse University research organization.

Syracuse’s Transactional Records Access Clearinghouse (TRAC), which collects and distributes data on federal government activities, reports that there are 375,503 pending cases for fiscal year 2014, approximately 77,400 of which are pending in California immigration courts.

That’s up from 186,108 in 2008. Immigration law experts say the increase in the backlog — at a time when illegal immigration has been flat or declining — is due to a loss in judicial manpower as immigration judges get frustrated and leave the courts.

Judge Tue Phan served as an immigration judge in San Francisco from 1995 to 2012 before stepping down with the intent to run as a Republican for the seat from which Democratic Representative George Miller will soon retire. Phan tells National Review Online he grew frustrated as an immigration judge when he saw an estimated 20 to 25 percent of his cases reopened where he had previously ruled the illegal immigrants deported in absentia. The cases were reopened, he says, because the illegal immigrants’ failure to appear in court was claimed to have happened for reasons beyond their control. He says the pressure of the pending caseload weighed on all of the immigration judges.

“Every morning you go into the courtroom, you go into your chambers, you put on your robe, you feel already tired,” he says. “I feel that I’m getting, I’m inside of something, I’m doing something that will never end. I don’t know whether I did the right thing. I don’t know whether I contribute to anything. It’s frustrating.”  

Judge Bruce Einhorn, director of Pepperdine’s Asylum and Refugee Law Clinic, worked as an immigration judge for 17 years in Los Angeles. When he left in 2007, Einhorn tells NRO, he had a pending caseload of 1,500. “Now that would be considered a light load,” he says. “Each immigration judge has a standing caseload in the thousands.” He described the long lines for master calendar hearings — which he described as equivalent to arraignment proceedings — as “sort of like the line to Dodger Stadium for World Series tickets” and recalled people fainting in the aisles. Einhorn says he believes if and when the economy gets better the government should hire more judges and staff, instead of looking to add additional Border Patrol officers.

The backlog of pending cases in immigration courts grew by 36,770 cases during the period from the end of fiscal year 2001 to the end of fiscal year 2008, according to TRAC. Since the end of fiscal year 2013, the number of pending cases has increased by more than 31,200 cases. The greatest number of pending cases involves Mexicans, followed by people from El Salvador, Guatemala, and China.

In response to the latest influx of the unaccompanied alien children, many from Central America, crossing the U.S. border, the Department of Justice’s Executive Office for Immigration Review has made docket adjustments, reprioritized certain cases, and refocused EOIR’s immigration court resources, a DOJ spokesperson says in an email to NRO. “EOIR is setting as its top priority the adjudication of cases that fall into the following four groups: unaccompanied children; adults with children in detention; adults with children released on “alternatives to detention”; and all other individuals in detention,” writes spokesperson Kathryn Mattingly. She says the realignment of the docket will mean each unaccompanied juvenile respondent will have a first master calendar hearing in 21 days, and EOIR deployed seven immigration judges to immigration court sites in Texas.

But the spike in the backlog has been felt at immigration courts across the country. As of June 2014, TRAC data shows Illinois has 18,807 pending cases in fiscal year 2014, and nine total immigration judges, according to the Department of Justice’s website. New Jersey has more than 17,300 cases pending before its immigration courts, and Virginia has nearly 16,000 pending cases, according to the data.

“You have to streamline that,” Phan says. “You cannot have appeal over appeal over motion to reopen over motion to continue. It’s pushing papers.” Phan says he does not believe in legislating from the bench, which contributed to his decision to retire and run for Congress.

“I was not happy with some aspects of the law, but I was only an obscure bureaucrat,” Phan says. “The only way to change anything is to change the law, and the only way I know of is to be involved and run for Congress and that’s why I did that, even though I know it’s going to be an uphill battle.”

— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.


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