ICE

Many removal proceedings must go before an immigration judge. This chart shows trends in the number of people that were removed from the U.S. from 2003 to 2008, broken down by ICE Field Office. Click on image to view chart. Produced by Hugo Cabrera

While the nation’s understaffed immigration courts strain under a backlog that has grown to more than 200,000 cases, thousands of new border agents have been hired and the number of government attorneys who argue for deportation has increased by 35 percent, pushing more cases onto an already overburdened system.

As a result, cases often take months if not years to complete, leading to more immigrants being locked up in a growing network of detention facilities and jails. On any given day there are more than 30,000 people in immigration lock-up.

Since 2004, 184 trial attorneys have been added by Immigration and Customs Enforcement (ICE), bringing the number of lawyers to about 709 as of Feb. 18, according to records recently obtained by the Center for Investigative Reporting through a Freedom of Information Act request. ICE, a bureau of the Department of Homeland Security (DHS), arrests and detains undocumented immigrants and deports those ordered removed from the country by an immigration judge.

The hiring of more border agents also contrasts sharply to that of immigration judges who have struggled to keep up with the case backlog. While nearly five thousand border agents were hired from 2006 to 2008—the number of Border Patrol agents is expected to reach 20,000 this year—there has been a net increase of three judges from 2006 to June 26, 2009. The number of judges has fluctuated, mostly stemming from retirement, and now stands at 233 jurists, according the Executive Office for Immigration Review (EOIR), the Justice Department agency that oversees the nation’s 57 immigration courts.

The shortfall of judges has contributed to a backlog of cases that reached 201,212 as of April 30, a 19 percent increase since 2006, according to a recent report by Transactional Records Access Clearinghouse (TRAC), a nonpartisan data-analysis group at Syracuse University. The backlog has jumped 64 percent since a decade ago.

Of the 233 current judges, all but a handful regularly hear cases, which TRAC projects to exceed 384,000 this year, up from about 354,000 cases last year. Looking at one week last year, TRAC found that each judge normally handled about 69 cases per week.

"For some people, these are the equivalent of death penalty cases, and we are conducting these cases in a traffic court setting," Judge Dana Leigh Marks, the president of the National Association of Immigration Judges recently told NPR.

The Justice Department has been slow to hire much needed immigration judges, the TRAC report states, despite calls by then-Attorney General Alberto Gonzales to add jurists as far back as 2006.

In the Justice Department’s 2009 Congressional budget submission, officials underscored that because the immigration courts get almost of their cases from the Department of Homeland Security, "The importance of effectively planning and coordinating with DHS, as their enforcement increases, cannot be overstated."

The Justice Department anticipates "that the current and planned expansion of DHS enforcement efforts, e.g., detention bedspaces, criminal alien programs and border enforcement, will increase immigration court case receipts well into the future," according to the justification report.

Despite appointing more than a dozen judges in the past six months, including 10 in April, EOIR still has 20 open judge positions, as of June 26. The 2009 Omnibus bill signed earlier this year by President Obama included $5 million for the hiring of new judges, and EOIR requested funding for 28 more for fiscal year 2010, according to the Justice Department.

Meanwhile, ICE documents show that the bureau has been approved this year to employ 916 attorneys, of which 735 will argue in courts, and a support staff of 630. As of Feb. 18, there were 26 unfilled attorney jobs. In 2007 the U.S. Government Accountability Office reported that ICE had budgetary approval to employ about 700 attorneys in fiscal year 2006.

Will the new hiring be enough to meet caseload demands as ICE marches more immigrants into court? EOIR thinks so: it checked off as completed necessary budget increases on its 22-point reform to-do list.

On average, roughly four judges now share one law clerk, TRAC found. Along with their usual tasks of hearing deportation, asylum and other related cases, judges also handle administrative duties normally done by clerks or bailiffs—duties such as operating digital recording devices (when they’re not struggling with decades-old cassette recorders) and handling exhibits.

As the number of cases put before immigration judges has increased, so too has the pressure on them to get through cases quickly. A survey of 96 judges, included in a recent Georgetown Immigration Law Journal article, highlights the effects of having an inadequate number of judges presiding over asylum cases in which decisions can have life-or-death consequences.

When surveyed about the challenges of immigration court, one judge responded by saying, “We are told to keep producing—to get the cases done, without regard for the fact that we have insufficient support staff, insufficient time to deliberate and to complete cases, and outdated equipment.”

The nature of cases heard by immigration judges, combined with case overload and long hours, makes the work of judges especially stressful and puts them at particular risk of burnout, the report states. Such burnout can lead to emotional exhaustion and depersonalization, loss of compassion and cynicism.

Judge Denise Slavin, vice president of the National Association of Immigration Judges, told CIR that the problem could be mostly addressed if there were more judges with better resources.

When asked about the courts’ workload, Elaine Komis, a spokeswoman for EOIR, acknowledged that immigration judges continue to face challenging caseloads, but added that they handle them “admirably well.”

“It is important to note that only a relatively low percentage of cases decided by the immigration judges and BIA (Board of Immigration Appeals) members are ever appealed, and of that small number, almost 90 percent are affirmed at the appellate court level nationwide,” she said. “We think this speaks well for the performance of our agency.”

Burnout and Secondary Post Traumatic Stress, however, don’t only have adverse effects on judges. Decisions in sensitive asylum cases have lacked uniformity and have even drawn criticism from appellate courts. The lack of uniformity is not surprising, given the beleaguered immigration courts and judges, although there have been recent signs of improvement, according to TRAC.

A Department of Justice spokesman recently told the New York Times that the growing backlog of cases highlighted by TRAC "doesn’t mean that courts are overwhelmed or inefficient," but rather that backlogs are the result of cases becoming more legally complex or unusual.

One immigration judge told surveyors that, while the law has gotten exponentially more complex and time pressures have made work much more grueling, resources such as clerks have all but disappeared.

And the Justice Department’s 2009 Congressional budget submission points out that immigration courts failed to meet two of three time-oriented performance goals for 2007, narrowly missing targets "due to a large number of immigration judge vacancies and an increase in the detained caseload."

The report continues: "EOIR’s adjudication functions are part of the government’s larger immigration and border control programs. As such, EOIR’s ability to adjudicate cases in a timely fashion allows the larger system to operate more efficiently, including the efficient utilization of DHS detention bed spaces."

As courts become increasingly saddled with work, the need for them to maintain adequate transparency is, more than ever, critical.

In a recent article in The Nation on the lack of transparency of some immigration courts, Jacqueline Stevens points out that although the court’s policy is for hearings to be open, except in certain situations, that’s not always the case. Stevens, a law and society professor at the University of California, Santa Barbara, describes how she was refused entry to immigration court inside two detention facilities in Arizona. The reasons why she was kept out, she argues, had nothing to do with the certain exceptions.

Indeed, immigration courts have some quirky ways. Members of the public and reporters who want to attend hearings are allowed to observe, but, as the Immigration Courts Practice Manual emphasizes, news media are "strongly encouraged" to give the court administrator a heads-up before sitting in on court, whether the hearing is held at a detention center or not.

This article also appeared on Truthdig. Andrew Becker is a staff reporter at the Center for Investigative Reporting. Hugo Cabrera is a CIR researcher.

Federal authorities have repeatedly said their priority is to find and remove illegal immigrants with violent criminal histories, but the U.S. government's stepped up enforcement in recent years has led to the deportation of hundreds of thousands of immigrants convicted of nonviolent crimes, according to a new study.

Nearly three-quarters of the roughly 897,000 immigrants deported from 1997 to 2007 after serving criminal sentences were convicted of nonviolent offenses and one-fifth were legal permanent residents, according to the study released today by Human Rights Watch.

"This explodes the myth that immigrants deported for crimes are invariably people here illegally who committed serious, violent crimes," said David Fathi, director of the New York-based advocacy group's U.S. program. "We know now the large majority are being deported for nonviolent, often quite minor crimes."

The report comes at a time when President Obama has said he will push for immigration reforms and Homeland Security Secretary Janet Napolitano has begun reviewing enforcement policies.

The deportations cited in the report occurred after the passage of a 1996 law that mandated the detention and deportation of all immigrants, even those who are longtime lawful residents, if they committed a crime punishable by at least one year behind bars.

The law is retroactive, so immigrants are often deported because of crimes they committed before the law was written.

The top reasons for deportation during the 10-year period were entering the U.S. illegally, driving while under the influence of alcohol, assault and immigration crimes, such as selling false citizenship papers, the report said.

The study is based on data obtained from the U.S. government through the Freedom of Information Act.

Immigration and Customs Enforcement spokeswoman Lori Haley said the agency was responsible for enforcing the laws enacted by Congress and carrying out court-ordered deportation orders. The majority of criminal immigrants targeted were identified while in the nation's jails or prisons, she said.

"Promoting public safety is part of ICE's core mission," Haley said. "Removing these individuals from our communities and from our country reduces a significant safety vulnerability."

The report said 28% of those deported on criminal grounds were convicted of violent or potentially violent offenses, such as robbery and kidnapping.

Roy Beck, executive director of NumbersUSA, which favors stricter controls on immigration, said illegal immigrants had no right to be here and should be removed regardless of their criminal records.

"They don't need to have committed a crime at all," he said. "They still should be deported."

The Human Rights Watch report estimates the deportations have caused the separation of more than 1 million family members.

Yakara Hernandez of Tampa, Fla., said she and her husband understood that he came to the U.S. illegally and were willing to pay the penalty. Hernandez said they owned a business and a home, paid taxes and were raising three daughters.

But she said the family's life had been on hold since immigration officials deported her husband to Honduras in December 2006.

Hector Hernandez had a drunken driving conviction and had been deported once before. He was arrested at the Port of Tampa and flown to his native country after spending two months in immigration jail.

"My life has been thrown into pause since 2006," she said. "I can't plan for the future."

Leticia Benitez, who lives in Azusa, said her family had also been divided by deportation. Benitez's husband, a legal permanent resident, was arrested in 2007 and deported to Mexico based on an old misdemeanor conviction for statutory rape.

"That was a mistake he did when he was a teenager," said Benitez, a U.S. citizen. "He shouldn't be punished for that."

His lawyer, Mario Acosta Jr., said Tuesday that the U.S. government had agreed that the crime should not have resulted in a deportation and that the case would return to appellate court. Benitez said she and the couple's two U.S.-born daughters were praying for his return.

The biggest problem with the 1996 law is that it didn't give judges enough discretion to consider family and community ties, said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles. Immigrants are punished twice for their crimes, she said.

"Not only are they dealing with whatever the mistake was in the criminal justice system, then they have to deal with the immigration consequences," she said.

Human Rights Watch recommended that Obama and Congress amend the law to allow legal permanent residents facing deportation to ask a judge for permission to stay in the country if their crimes were minor and their family connections strong.

The report also calls on immigration authorities to focus their deportation efforts on undocumented immigrants convicted of violent crimes.

But Rachel E. Rosenbloom, supervising attorney with Boston College's Post-Deportation Human Rights Project, said she expected the deportation of criminal offenders would be the last piece of any reform legislation.

"There are a lot of issues that need to be fixed in our immigration laws," Rosenbloom said. "This is one of them, but it's not in the limelight."

Andrew Becker is a CIR staff reporter. Anna Gorman is a Los Angeles Times staff writer.