A critical shortage of immigration judges has lead to an “overburdened and under-resourced” immigration system marked by Kafka-esque tales of endless rescheduling and astounding wait times as long as a year between hearings, witnesses told a House Judiciary panel Thursday.
A combination of increased immigration enforcement by the Department of Homeland Security and extended review processes in the courts has swamped immigration courts and administration systems, Associate Deputy Assistant Attorney General Juan Osuna said at a hearing before the Judiciary Subcommittee on immigration, citizenship, refugee, border security and international law.
Despite the difficulties, the Justice Department is taking steps to buttress the Executive Office of Immigration Review — a part of the DOJ that oversees deportation proceedings and make decisions on asylum, removal and adjustment of status for aliens — Osuna said.
“The department is fully committed to ensuring that the immigration courts have the appropriate number of immigration judges and additional support staff to make sure that the system operates efficiently,” Osuna said.
In a report released earlier this year, the American Bar Association found that immigration courts are facing a critical shortage of judges.
According to the ABA, in fiscal year 2008 each of the 226 immigration judges handled an average of 1,243 proceedings and 1,014 decisions — an exhausting caseload accompanied by more “significant levels of stress and higher levels of burnout” than most professional groups.
As of January 2010, there were 48 vacancies — or 17 percent of all judge positions — on the nation’s immigration courts, according to a study by the Transactional Records Access Clearinghouse at Syracuse University. Currently, immigration courts seat 237 immigration judges at the trial level, with 15 members on the Board of Immigration Appeals.
The TRAC analysis found that the vacancies have lead to an increase in the average length of time cases have been pending. On average, cases are pending 439 days, TRAC found. Longer wait times reach as high as 713 days in Los Angeles and 612 days in Boston, The Washington Post reported.
In addition, the ABA report cited a dearth of law clerks to assist immigration judges, with one clerk for every 3.7 judges — a total of just 62 law clerks as of November 2009.
“EOIR is underfunded and … this resource deficiency has resulted in too few judges and insufficient support staff to competently handle the caseload of the immigration courts,” the ABA report concluded.
In response, Osuna highlighted a 2006 order that change procedures governing the Board of Immigration Appeals. That change has resulted in a decline in appealed cases, and a much need break for the appeals courts facing mountainous caseloads, he said.
Rep. Judy Chu (D-Calif.) raised concerns over the department’s hiring practices for immigration judges, saying sitting judges often lack immigration expertise.
Osuna said the department offers many training opportunities for immigration judges and requires all new judges to undergo five weeks of training before they can begin hearing cases. He also assured Chu that the department was pursuing judge diversity in terms of professional background and ethnicity.
“Certainly, knowledge of immigration law is an important [factor],” Osuna said. “[But] it is not the only requirement that we look for, or that we should look for. The more important requirement is the assessment and the demonstrated ability to act like a judge … you may have an immigration law expert, but they may not know how to handle themselves in the courtroom.”
Other witnesses at the hearing told stories of the constant rescheduling and long wait times — sometimes more than a year between hearings – that have resulted from the shortage of judges. Rep. Sheila Jackson Lee (D-Texas) voiced concern over the unduly long waiting periods and “human tragedies” that resulted from insufficient resources in the current immigration system.
Immigrant and asylum seekers are prohibited from seeking employment while awaiting administrative confirmation, resulting in hardships that transcend a lack of legal status. In many cases, appearances in court are postponed or rescheduled, stopping the asylum seeker’s “asylum clock,” which determines how many days a applicant must wait before seeking employment after filing for asylum.