Border patrol agents took more than 130,000 people into custody at the U.S.-Mexico border in May, the highest number in 13 years.
From there, the migrants, largely families from Central America who crossed the border illegally, will be moved to overcrowded processing centers, and then to long-term detention centers and shelters, some of which have faced accusations of abuse, inadequate medical care, and lack of legal representation.
What they won’t get is an answer on whether they can stay in the U.S. That’s because there are already 892,517 cases pending in immigration courts, which have been waiting for an average of 726 days, or just about two years.
This wasn’t always the case. The backlog really started to take off in 2006, when there were only 168,827 pending cases waiting for an average of just 406 days.
“This is a backlog that has been building for years and years, over many administrations,” Judge Dana Leigh Marks, president emerita of the National Association of Immigration Judges, told VICE News.
How did we get here? Here’s the story of how the system broke down:
Too many cases, not enough judges
The courts started to fall behind when the number of cases began increasing — without a corresponding uptick in the number of judges. The Clinton administration saw about 160,000 new cases a year. Ramped-up prosecution of undocumented immigrants under the Bush and Obama administrations supplied far more: an average of about 215,000 and 237,000 cases, respectively.
The U.S. government could have hired more judges, and it did try. Then-Attorney General Alberto Gonzales intended to hire immigration judges in 2006 as part of a slate of reforms to the immigration courts. The problem is, it can take years to hire and train an immigration judge, so many of the positions went unfilled until well into the Obama administration.
And in 2011, automatic spending cuts meant no new money could be allocated for hiring. So as judges retired over the next few years, the courts gradually fell behind.
“The immigration court judges often feel like we are the canaries in the coal mine trying to alert the Department of Justice and Congress that the backlog is creeping up and that we need more resources,” Judge Marks said.
In 2014, President Obama recognized the problem and requested funding from Congress to hire 40 more judges. Over the next two years, he also asked Congress for money to hire 85 new judges. But it was too little, too late. Of the 130 judges Obama wanted to hire, only 76 judges were actually hired by the end of 2016.
But under the Trump administration, some of the positions were filled — and the hiring spree continued. A staggering 192 judges have started since the beginning of 2017, bringing the total to 424. Although hiring recently paused for budgetary reasons, the new judges will certainly make a dent in the backlog — but they won’t completely fix the problem. They were never going to, since the lack of judges wasn’t the only reason the backlog existed in the first place.
More complex cases
If lack of judges were the sole cause of the backlog, immigration courts would have been overwhelmed in 2005. That year, 286,043 new cases flooded in, the most of any year until 2018. Instead, judges that year completed a record of about 1,260 cases on average, according to a VICE News analysis.
But since then, judges have gradually completed fewer cases per year. It’s not because they’re getting lazier; it’s because the types of cases have changed.
In 2005, many of the new arrivals were Central American farmers displaced by U.S. trade policy and Brazilians taking advantage of a lax visa policy with Mexico. Both groups had weak legal claims to stay in the U.S. and were quickly deported.
Over the course of the Obama administration, on the other hand, more families and minors crossed the border, often fleeing gang or domestic violence. In 2014, for example, the number of unaccompanied minors increased 77% from the year before and the number of families went up 200%.
“Those cases take a lot more nuanced analysis in order to determine whether the asylum law fits them or does not fit them,” said Judge Marks.
Along with the types of cases, another thing that's slowed down the courts is the policy for how to handle them. In 2014, the Obama administration created priority dockets for minors and families that essentially bumped those cases to the front of the line.
That sounds like a good idea but often meant that families had to come to court before they’d secured representation or collected the necessary documents. Immigration advocates dubbed the policy the “rocket docket” and criticized Obama for stripping migrants of due process.
To give migrants the time they needed to prepare for court, judges would have to offer continuances. Those allowed the families to come back to court at a later date — but delayed the final resolutions of their cases. Between 2006 and 2015, the use of continuances increased by 23%, according to the latest government data available. Over the same period, processing time for cases went from an average of 228 days to 504 days.
No more “plea bargains”
In criminal court, prosecutors can use plea bargains to help preserve limited court resources. That way, only the most serious or most difficult cases end up taking a judge’s time. But that option doesn’t exist within the immigration court system, because there’s no lesser sentence an immigrant can plea to. The consequence is always deportation.
The closest option is called “administrative closure,” which allows immigration judges to remove low-priority cases from their dockets to devote more time to serious cases. Making that call effectively closes the cases; though the judge doesn’t grant a visa or specific form of relief, the undocumented person is no longer in removal proceedings.
The use of administrative closure increased 400% over the course of the Obama administration to focus on deporting criminals, rather than have judges devote time to cases of an undocumented person running a stop sign or someone whose visa application is already being processed. Then-Chief Immigration Judge Brian M. O’Leary even issued a memo in 2013 encouraging judges to use administrative closure to put the court’s limited resources to their best use.
But Attorney General Jeff Sessions eliminated administrative closure in 2018 and even reopened over 350,000 previously closed cases. Once all of those cases are reentered into the system, the backlog will grow even more.
“The policies of late have been to scoop everybody into this and put them in [removal] proceedings and have those cases go the full traditional hearing process,” Judge Marks said.
The change was part of the Trump administration's broader effort to deport all undocumented immigrants, not just the criminals ones. And Sessions had the power to change the policy because immigration courts fall under the purview of the Department of Justice, unlike with criminal courts, which are part of the judicial branch. The structure gives the attorney general a tremendous amount of control over court policy.
Immigration judges have complained that their lack of independence results in mismanagement, like the Obama-era “rocket docket” policy. Many immigration judges — and the American Bar Association — have repeatedly called for an independent immigration court.
Creating a fair system
The Trump administration has implemented several measures to reduce the backlog. It’s hired new judges, implemented performance quotas based on the number of cases judges complete and how few get appealed, and restricted the use of continuances.
The changes will undoubtedly speed up the courts. But the question is whether they’ll lead to a well-functioning and just system. Some judges are reportedly resigning in response to the quotas, which made them feel more like deportation officers than judges.
“The law is complicated. We're required to give people the opportunity to present the evidence that they feel is required,” said Judge Marks. “And if we don't give someone their day in court, we can be denying them due process.”
Graphics by Kaz Ishii
Cover: A group of about 30 Brazilian migrants, who had just crossed the border, sit on the ground near U.S. Border Patrol agents, on the property of Jeff Allen, who used to run a brick factory near Mt. Christo Rey on the US-Mexico border in Sunland Park, New Mexico on March 20, 2019. (Photo by PAUL RATJE/AFP/Getty Images)