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October 17, 2017

Titled Justice: Backlogs Grow While Fairness Shrinks in U.S. Immigration Courts

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The backlog in the U.S. immigration courts has reached an all-time high, with 632,261 cases pending as of August 2017. In some of the nation’s largest immigration courts, people wait an average of three to five years for their next hearing. In an April 2016 report, Human Rights First detailed the growth of the backlog and its devastating effect on asylum seekers and their families. Since then, the backlog has continued to grow. Trump Administration policies are making it worse.

On January 25, 2017, President Trump issued two executive orders that are aggravating the backlog and threatening the fair treatment of asylum seekers and other immigrants. In these orders, the president called for the expansion of detention facilities to hold immigrants for the duration of their immigration court proceedings, and instructed Attorney General Jeff Sessions to “immediately” assign immigration judges to detention facilities. He stated that it was executive branch policy to “expedite determinations of apprehended individual’s claims of eligibility” to remain in the country, and declared an end to strategies that prioritize some categories of immigrants for enforcement. One of the orders also threatened the expansion of summary deportation proceedings known as expedited removal, which deny people the due process safeguard of an immigration court hearing. 

In response to the president’s instruction, Attorney General Jeff Sessions directed immigration courts to temporarily assign up to 50 judges to detention centers in border areas—a move that has caused thousands of hearing adjournments. Also in response, the Department of Homeland Security (DHS), in a February 20 memorandum, called for the “expedited resolution” of asylum claims in detention facilities near the border, raising concerns that “rocket-docket” hearings could deprive asylum seekers and other immigrants of the chance to secure legal counsel and gather evidence needed to meet the requirements of complex U.S. laws.

On October 8, the White House released its “Immigration Policy Priorities,” a long list of the administration’s demands for what should be included in legislation providing immigration status to young people who were protected under the Deferred Action for Childhood Arrivals (DACA) program. In addition to calling for increased hiring of immigration judges to address backlogs, the administration’s list makes clear that it is using the existence of the backlog as a pretext for advancing policies that deprive people of immigration court hearings through expanded use of expedited removal. It also raises additional concerns that cases may be rushed through the courts due to the imposition of rigid “performance metrics” on immigration judges.

These proposals, if enacted, would curtail access to asylum and the due process safeguard of an immigration court hearing. On October 12, Attorney General Sessions traveled to the immigration court’s headquarters in Virginia to give a speech that inaccurately painted asylum cases as “overloaded with fake claims,” raising concerns that he is trying to influence judges to deny even more cases.

This report draws on research conducted in the summer and early fall of 2017, including a survey of 50 nonprofit and pro bono lawyers representing immigrants in immigration courts across the country, as well as interviews with former immigration court judges and officials, experts, and practitioners. 

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