Will Reform Address the Backlog in Immigration Courts?

22 Feb

The Texas Tribune reports that Comprehensive Immigration Reform is more than about building a border fence and creating a legalization program. There are less prominent, but still very important, other problems that reform could address. For example, the Tribune points to the backlog of cases in immigration courts around the country, which leads to cases dragging on for months or years. This makes it hard for people to move on with their life and is especially tough for people in detention. The article says:

“What the draft does contain, however, is language that would add 140 additional immigration judges to alleviate the backlog in the current system. Data obtained through open records requests filed by the Transactional Records Access Clearinghouse at Syracuse University shows that almost 324,000 immigration cases are currently awaiting a resolution. The caseload in Texas courts is the third-largest in the country, with about 41,760 outstanding.”

The TRAC data is interesting. It shows that of the 41,760 cases pending in Texas, both Houston and San Antonio have over 10,000 cases pending in their courts. There are several thousand more pending in Dallas, El Paso, and Harlingen. The average case in a Texas immigration court has been pending for over one year — 393 days — meaning many cases have been pending much longer. Broken down by court location, the average days pending are 490 in Houston, 472 in El Paso, 396 in Dallas, and 318 in San Antonio.

While hiring more immigration judges is a necessary response, a better response would be giving judges more power to dismiss cases involving minor criminal conduct. In the article, David Leopold, past president of the American Immigration Lawyers Association, points that prior to the 1996, judges had much more discretion to dismiss cases and we did not face the same kind of backlog. He advocates returning more discretion to immigration judges.

Cancellation of removal for lawful permanent residents is a good example of this. LPR cancellation is only available to LPRs who have been continuously present for at least seven years, have been LPRs for at least five years, and do not have a conviction for an aggravated felony. These additional requirements are unnecessary because they are already factored into the discretionary decision. The judge is already asked to factor in length of presence, immigration violations, and criminal record. For example, if someone had a severe aggravated felony, such as murder, it is very unlikely he would be granted cancellation anyway. But there may be some people with less serious crimes, still classified as aggravated felons, who are good candidates for cancellation but are not permitted to apply due to this categorical ineligibility. LPR cancellation should be more broadly available, allowing judges to weigh all the factors and make individual determinations.

For immigration reform to truly be comprehensive, it needs to deal with all of the problems in the system, including the backlog of cases in immigration courts.

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