US immigration courts struggle amid understaffing and backlog of cases

The US’ immigration courts are failing to function at the most basic level, industry leaders have warned, as the already understaffed and often undertrained judges are now overwhelmed by an increasing backlog of over 1.6m cases.

The system is so damaged that judges, scholars and attorneys all have expressed concerns about whether immigrants, who are due in court, will even receive notice before their hearings so they know to turn up and are not ordered deported in absentia.

“It’s very worrisome. The fundamental requirement for a full and fair hearing is notice of your hearing and the ability to attend your hearing,” Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), said.

“I see incredible efforts being made by the staff – the bare-bones staff in some courts – to try to support these very, very heavy dockets,” she told the Guardian in an exclusive interview in her union leadership capacity. “But it’s extremely challenging for all of us to meet the demands.”

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The US immigration court system has been dysfunctional for decades, but now, it is even worse after serious setbacks under former president Donald Trump.

A range of people are fighting for fair play and often literally their lives in courts ill-equipped to do them justice.

These include undocumented immigrants, who are worried about being split from their American children and spouses, those facing persecution and death in their countries of origin, or those being sent to countries they have not seen in decades.

“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”

According to Chishti, all the hallmarks of a strong administrative law system is suffering in the country’s immigration courts which should be housed within the judicial branch but are housed under the Department of Justice in the executive branch of the federal government.

“It is a system in crisis,” he said.

According to Reuters, Trump flooded courts with judges more inclined to order deportations. Under his administration, so many new immigration judges were hired so hastily that the American Bar Association warned of “under-qualified or potentially biased judges,” many of whom lacked immigration experience.

Meanwhile, officials such as then-attorney general Jeff Sessions proclaimed that “the vast majority of asylum claims are not valid,” and simultaneously new performance metrics were introduced, demanding judges each race through at least 700 cases a year.

However, in the nearly 70 US immigration courts across the country, judges are dealing with complex cases ranging from asylum seekers being forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside wind up appearing in court, often without attorneys.

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The case backlog soared from just over 516,000 cases in fiscal year 2016 to more than 1.6m today, according to data collected by Syracuse University’s Transactional Records Access Clearinghouse (Trac).

“Quarterly growth in the number of pending immigration court cases between October and December 2021 is the largest on record,” according to Trac.

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