“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.
Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.
The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.
“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.
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Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.
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The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”
To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.
And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.
I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.
In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.
Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”