Immigration Court Backlog Raises Due Process Concerns In The Era Of Trump
Five days after he was inaugurated as president, Donald Trump issued an executive order cracking down on illegal immigration.
It included money for tighter security at the border, plans for a border wall with Mexico and tougher standards for becoming a U.S. citizen.
With additional hundreds of thousands of cases expected to further clog an already overburdened immigration court system, the Justice Department is releasing new guidelines on how to move cases through the system more efficiently.
Immigration attorneys and advocates are concerned these new policies risk denying those in the country without legal status due process of law.
One man’s story
Darwin Rivas illegally crossed over into the United States in March 2016 from Honduras. He now lives in mid-Missouri with his mother and sister.
Honduras is one of the most violent countries in the world. Rivas says he’s been targeted multiple times by violent Honduran gangs.
“I thought I could be killed, I couldn't finish my studies,” he says through an interpreter. “I wanted my mom to send for me [from the U.S] ... because they came and looked for me many times."
After being detained by immigration authorities, Rivas was released and told to show up at the immigration court closest to where he’d be staying, which was Kansas City. Like more than half the people facing immigration charges, Rivas couldn’t afford an attorney. A friend accompanied him to court, where he said he was always confused.
“I never really understood. ... The only reason I do now is because I have a lawyer,” he says.
Rivas had a police report to prove he’d gone to authorities in Honduras. Doing that was risky in Honduras; Rivas says he's certain that's why he was targeted by his attackers.
But he never gave his report to the immigration judge because he says the judge didn’t ask him for it. After several hearings, none lasting more than a few minutes, his asylum request was denied. Facing deportation, he saved up money to hire a lawyer to appeal.
The immigration court where Rivas' case was heard is in a Crown Center office building in Kansas City that houses the law firm of Lathrop & Gage and other businesses. It's about two hours from where Rivas lives.
On a recent morning in January, the nondescript court's small lobby is packed with others also facing removal from the United States.
Security guards pass mothers and children, couples or individuals through a metal detector. A handful of lawyers, readily identifiable by their dress and demeanor, escort their clients into the small courtrooms.
Recording in the courtroom isn't permitted. But if you could record, you’d hear Judge Jayme Salinardi or one of the two other immigration judges whipping through their dockets. The mostly first-time hearings last no more than three minutes each. Almost all are postponed — some for years.
“Please state your name,” Judge Salinardi asks for the record. “Is Spanish your first language?” If so, he says, a translator will be provided. He verifies a few facts about the case. “Will you be available on August 18th of 2021?”
The immigration courts — there are more than 50 nationwide — have had big backlogs since well before Trump took office. But immigration judges and lawyers agree the problem has only gotten worse in the last year. Pending cases nationwide increased from 516,031 in fiscal 2016 to 629,051 in fiscal 2017, according to TRAC, a database research center at Syracuse University. Right now, the backlog stands at 658,728.
“This is a new era. This the era of Trump,” Attorney General Jeff Sessions announced last year in remarks at the U.S. Mexican border.
President Trump’s executive order expands the authority of immigration officials to deport non-U.S. citizens at the border. It also limits the discretion of prosecutors to prioritize cases as more or less urgent and takes away the ability of judges to close some cases temporarily to make room for more pressing ones.
The push to move more cases through the immigration court pipeline concerns Genevra Alberti with The Clinic at Sharma-Crawford Attorneys at Law. She's one of a handful of pro bono immigration attorneys in the Kansas City area.
“Due process is apparently not really a concern of the Trump administration,” she says. “If (non-citizens) are not being given due process of the law, they’re not being given a meaningful opportunity to present their cases and potentially stay here in the United States."
She adds: “So not only are they picking up more and more people who generally would have fallen under the radar in the past, but also people who have had their cases administratively closed and put on the back burner. And courts are being suddenly asked to put them back on their docket just because.”
For many people who appear in immigration court, the stakes couldn’t be higher. Yet more and more of them have no legal representation. Like Rivas, they can’t afford an attorney or don’t have the time to find one. Pro-bono lawyers are maxed out. Alberti herself has 175 cases right now. Many of those who represent themselves find the convoluted tangle of U.S. immigration laws confusing.
Bradley Jenkins, a pro bono attorney with the Catholic Legal Immigration Network, says there’s a good reason for that.
“Immigration law is complex,” he says. “It’s more complex than the tax code.”
“Many conscientious judges are very worried about getting it right and afraid of getting it wrong (with) these pressures to get through increased cases,” he adds.
Justice Department spokesman Devin O’Malley says the administration inherited a massive number of deportation cases.
“In 2010, longstanding immigration court benchmarks for non-detained cases were abruptly abandoned, and since that time — perhaps not coincidentally — the caseload has tripled," O’Malley explained in an email.
Prioritizing cases that "can be resolved more quickly in favor of cases that often take longer to complete" will reduce the caseload, he says. The administration also is bringing back previously abandoned performance goals for courts and judges, another way to address the backlog, O'Malley says.
He describes the administration's measures as "a series of common-sense reforms that aim to reduce the so-called "backlog" by realigning the agency towards completing cases, increasing both productivity and capacity and changing policies that lead to inefficiencies and waste."
Retired immigration Judge John O’Malley, a former Jackson County judge who became the first immigration judge in Kansas City in 2009 (and no relation to Devin O'Malley), is concerned about how that will play out. Back when he started, there were about 180,000 pending cases nationwide.
"So it's triple the number of cases pending, which already was staggering," he says. "It's just a straight line up."
Before, O'Malley says, if an undocumented immigrant had been living in the country for 30 years "minding his own business and never been in trouble," that case "would have been moved to the back of the drawer."
"You just said we're going to go after the criminals and crooks, you haven't hurt anybody. ... And that's not happening now."
O'Malley says the Constitution doesn’t specifically address immigration issues, but it does hold out certain promises and protections.
“And that includes always, of course, due process,” he says. “Which means simply the right to know what you’ve been charged with and the right to come in and defend yourself."
As the pressure ramps up to move cases more quickly through the pipeline, the question is whether it’s possible to ensure those promises are kept.
Laura Ziegler is a community engagement reporter and producer. You can reach her via email at email@example.com or on twitter @laurazig.
Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.