immigration

A van stuffed front to back with nearly 6,000 pounds of marijuana ran out of gas as it headed toward the Paso Del Norte border crossing and an inspection lane manned by Margarita Crispin, who was sentenced in April 2008 to 20 years in federal prison for helping drug traffickers. PHOTO: Department of Homeland Security Office of Inspector General, El Paso

The rumors about Margarita Crispin started soon after her first day as a customs officer in El Paso, Texas. In March 2003, Crispin started working the line at the Paso Del Norte bridge, across from Ciudad Juárez. Nearly one-fifth of all drugs seized coming across the border enter through the El Paso-Juárez area, and the region is viciously contested by Mexican cartels. So when Crispin waved off the dogs that sniff out drugs in the long line of cars waiting to enter the United States, saying she didn't like them around her, it raised a few eyebrows.

Corruption among border agents is nothing new. But what makes Crispin's case different is that investigators from the Department of Homeland Security suspect she'd been recruited by a friend with ties to the Juárez cartel before she took the job. Almost immediately after completing her training and putting on her badge, she began to help traffickers "cross loads." As many as three vans stuffed with drugs would pass through her inspection lane several times a week. By the time she was arrested in July 2007, Crispin is thought to have let more than 2,200 pounds of marijuana into the United States. In return, DHS agents say, she received millions in bribes, much of which remains unaccounted for. Last April, she pled guilty and was sentenced to 20 years and ordered to forfeit as much as $5 million, plus jewelry and a truck.

At least two other recently arrested agents are suspected of being drug cartel plants. And as Customs and Border Protection continues its biggest hiring surge ever, investigators see infiltration as a growing threat. By this fall, CBP expects to have more than 20,000 agents, twice what it had in 2001. "We're seeing fewer reports by agents of being approached by traffickers," says James Smith, special agent in charge of the DHS inspector general's El Paso office, which investigates corruption and misconduct cases. "We're not just seeing disgruntled employees going bad. We're seeing more cases where agents are already employed by the drug-trafficking and alien-smuggling organizations before they go to work for CBP."

Speaking Spanish is a required skill for agents, and many have family and other ties to Mexico. Though agents are subjected to extensive background checks, it is a challenge to indentify red flags in applicants' personal histories or connections across the border. Since the agency began giving polygraph tests to potential hires last year, investigators have found four applicants planted by the cartels. Still, they're concerned that others may have already slipped through.

Some officials worry that the screening program may not be able to keep up with the pace of recruitment. But James Tomsheck, CBP's assistant commissioner for internal affairs, says the agency hasn't cut corners. Rather, he thinks the increased risk of cartels' penetrating its ranks is an unintended consequence of the successful efforts to secure the border with fencing and more agents. "The threat, as it emanates from the cartels, is a real one," he says. "Our concern is, what is it that we don't know? Who is in our workforce that we have not yet detected?"

This article appeared in the July/August 2009 issue of Mother Jones. Andrew Becker is a CIR staff reporter.

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.