Fixing Immigration Court

Apparently USA Today was jealous of the AP's big piece on immigration detention from a few weeks ago, because they did their own investigation into another blown-out tire on our nation's totalled immigration system: the backlog in immigration court (via). They found that 90,000 people since 2003 have waited two or more years to have their case decided by an immigration judge, and 14,000 have waited five or more (no indication of how long people are waiting between the final order of deportation and actually setting foot in their home country). The story doesn't break down how many of those people were detained, but I presume it's a very substantial amount. The detention angle raises the problems with immigration court from ordinary bureaucratic abuse to serious injustice.

There are a variety of things that would ease this problem:

1) More resources for the immigration court system. This is the obvious one, mentioned in the USA Today article. With more judges and clerks, they could get people on the docket quicker and get their cases underway.

2) Changing the focus of enforcement. The immigration court system is full of people. But a lot of those people are low-level offenders -- green-card holders who got caught with a bong, people who gave their life savings to a coyote to get smuggled in and given a forged social security card, kids whose parents brought them in as babies but forgot to adjust their refugee status. Prosecuting these people -- the Sheriff Joe strategy -- is not getting the most bang for your buck. There have been some encouraging noises from the Department of Homeland Security that they're going to start focusing on going after the employers and the smugglers -- the big players -- though we'll see what that ends up meaning in practice.

3) Reduce the amount of deportable offenses. If there's a problem with too many people who are in the country illegally, there are two ways to fix that -- get them out of the country, or give them an option to be here legally. I realize the second option isn't politically feasible, but it would certainly help. I have some admittedly radical ideas on what the system should end up looking like, but you don't have to go that far to get some mileage out of this idea. You could take a big chunk out of the backlog by declaring that you can't get kicked out of the country for smoking pot anymore. You could take another chunk by improving access to legal status -- more visas, lower fees, etc. Streamline the whole process of getting and keeping status, and you'll have fewer people getting caught up in technical violations (as well as ultimately a lower workload for the government).

4) Public defenders for immigration court. Anyone in the U.S. charged with a crime -- citizen, legal immigrant, or even totally undocumented -- is eligible for a public defender if they can't afford a lawyer. But since immigration is classified as civil law*, there are no PDs. That means a huge proportion of immigrants are unrepresented, while a bunch more are represented by scammers and incompetents**. This is a problem for the immigrants, obviously. But it's also a problem for the efficiency of the system. A good lawyer can help an immigrant understand which forms of relief are likely to work, and which ones would be a waste of time to pursue. A good lawyer can help the immigrant understand the court process -- when things need to happen, how to file certain things, etc. A good lawyer can keep ICE on its toes to keep the process moving. It's distressing that none of the serious immigration reform bills that have come up recently have included a PD program.

5) Reduce the use of detention. As I argued earlier, detention is a horrible thing and should be avoided if possible -- and it usually is possible. It's a lot easier to wait two years for your case to be resolved if you're out and about than rotting in a jail cell (easier for the immigrant's mental and physical health, and easier for the taxpayers' pocketbooks).


*IANAL, but as far as I can tell the criteria by which we decide whether an area of law is civil or criminal is on the basis of whether the government has decreed that it's civil or criminal.

**Immigrants facing deportation and their families are understandably desperate, and understandably ignorant about the intricacies of the second-most-complex area of U.S. law (after tax law). And if you get deported, it's tough to hold your lawyer accountable. So they're easy prey for people who make up hopeful stories about their chances and charge big bucks for pretending to fight their case.