Immigration Courts Are on the Verge of Collapse - NBC Southern California
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Immigration Courts Are on the Verge of Collapse

Experts say hundreds of thousands of backlogged cased jeopardize system and due process

In downtown Los Angeles, the immigration court takes up three floors of an office building across from Pershing Square. Outside, there's no mention about what's taking place inside the non-descript office tower -- families huddled together in bleach-white hallways, in groups so large you can't tell if the air conditioner is even running.

Data Shows US Immigration Court System BackloggedData Shows US Immigration Court System Backlogged

NBC4 I-Teams have spent months looking at immigration data and found more than 50,000 backlogged cases locally. John Cádiz Klemack reports for the NBC4 News at 5 on Wednesday, Sept. 27, 2017.

(Published Wednesday, Sept. 27, 2017)

And, these are just the people with court cases on this particular day. Thousands of more immigrants are still waiting for their moment in the same hallways.

For months, the NBC4 I-Team has been investigating the United States Immigration Court system, as part of a project involving NBC stations across the country. We found a situation so dire even some judges agree justice is not being served properly.

A lack of resources has led to a backlog of hundreds of thousands of immigration cases that is keeping families -- and entire communities -- in limbo.

The fact is, there are too many cases and too few judges and attorneys to handle them.

Data reviewed by the I-Team shows that the Immigration Court is taking more than twice as much time to complete fewer cases then it did a decade ago. According to the Government Accountability Office, the time required to complete a removal case for deportation has dramatically increased from 29 days in 2009 to 67 days in 2011 to 140 days in 2012 and 321 days in 2013. It now takes years for cases to be completed. These delays leave the lives of tens of thousands hanging in the balance.

Here in Los Angeles, the delays have gotten even worse than much of the rest of the country. Government data shows that undocumented immigrants wait an average of 800 days to have their cases completed. In some situations the earliest your case will be heard is 2020.

"I think a lot of citizens take it for granted so much," said Dayna Gomez about her dream of becoming a U.S. citizen.

For almost her entire life, Gomez thought she was a citizen. She came to the United States when she was just 8 years old, her mother telling her to sleep in the backseat of the family car and that she'd be in Disneyland by morning.

"When I woke up, I was in Huntington Park," she said.

Gomez eventually graduated from high school with a 4.0 GPA and with dreams of going to college. She even earned a federal scholarship, but because of her status, she couldn't cash it in.

"Since I didn't have a social security number, they couldn't give it me," she said. "That's when I realized I wouldn't go to college. That was devastating for me."

It was the first in a series of setbacks for the straight 'A' student. An abusive marriage brought her to the attention of federal authorities, beginning her years-long journey through the U.S. Immigration Court System.

Gomez says her husband abused her physically and psychologically and when the police came after one physical incident, she ended up in handcuffs.

"They told me you have an immigration hold," she recalls. "That was the most humiliating part of my life. Because honestly I never even got a parking ticket in my life. I never even got detention in school."

Gomez was eventually released but only after promising to return to Mexico, where she would stay for six months before coming back to the U.S. But because she left the country, she was ineligible for DACA status - the Deferred Action for Childhood Arrivals. However, because of her record as being a victim of domestic violence, she was able to apply for a special visa waiver.

"I had my whole living room full of papers and at one point I cried to my mom, I can't do it, it's too much, they're asking for too much," she said.

It's not just immigrants who feel that way -- some U.S. immigration court judges do as well.

"It's a disaster, I think it's moving toward implosion," says Judge Paul Schmidt, a retired US Immigration Court Judge.

"I think most people would be incredulous at what actually happens in immigration court and what sometimes passes for due process," he said. "It's not fair either way, it's not fair to keep people with good claims waiting, but it's not really fair that if people have no claim their cases sort of aimlessly get shuffled off."

With more than 617,000 backlogged cases nationwide (more than 50,000 in LA alone), experts such as Judge Schmidt say the immigration court is failing.

"It's difficult to overstate how bad it is," says U.C. Irvine School of Law Professor Jennifer Chacón. She says judges who make decisions on who can stay and who will be deported are overwhelmed with thousands and thousands of cases.

"Some of these cases are really sitting for five, six, seven, eight years and some of these individuals are sitting in detention while their cases are being resolved," she said. "You live with perpetual uncertainty for many, many years and it's incredibly difficult for people to plan, to integrate into their communities, to feel comfortable. It has a huge psychological impact. It has a financial impact."

Not only on the individual families but on the nation as whole. Data shows that undocumented immigrants pay billions of dollars in taxes annually. Since 1996, the IRS has issued Individual Taxpayer Identification Numbers (ITIN) to undocumented immigrants seeking work. ITIN filers pay more than $9 billion in annual payroll taxes. They also pay billions of dollars into Social Security through their jobs according to a 2014 report by Social Security's chief actuary. Money they are not eligible to get back.

And despite the political rhetoric, Chacón says immigrants as a whole aren't responsible for an increase in crime in this country.

"We know from the data that immigrants commit crimes at much lower rates than their citizen cohorts," said Chacón.

A 2017 UC Irvine study found that immigration does not raise the crime rate. In a review of 51 studies published between 1994 and 2014, the UCI report found that studies "most frequently found no relationship between immigration and crime." When there was a connection, "it was 2.5 times more likely that immigration was actually linked to a reduction in crime and not an increase."

US Immigration by the NumbersUS Immigration by the Numbers

An overview of immigration in the U.S., by the numbers.

(Published Thursday, Dec. 14, 2017)

But Chacón says those who are worried about law and order issues and want to see a crackdown on immigration should be equally concerned with the failures of the Immigration Court system.

"The difficulty with the backlog is lots of people who have potential relief are not being heard and that is a justice problem," Chacón said. "If you have rule of law concerns you should be deeply concerned about our immigration courts because they are failing by rule of law metrics."

Chacón says existing US law gives undocumented immigrants a variety of reasons for being allowed to stay in this country. It's not simply a case of being legal or illegal. In fact, data shows in 2016 that nearly 70% of local undocumented immigrants were granted some form of legal status when their case was finally heard.

"It's very important to get that right because if you get that wrong you're sending somebody back to die or to be tortured or to be imprisoned," she says.

Immigration judges know they're making life-changing decisions from the bench and worry that the amount of cases they are handling, often in the thousands per judge, are threatening due process for those involved.

Judge Dana Marks is an immigration judge in San Francisco but spoke to NBC in her capacity as President of the National Association of Immigration Judges.

"We've been resourced-starved for over a decade and this is what happens," said Marks, adding that the stakes are just too high to get these decisions wrong.

"People's lives are at risk and the quality of their lives is deeply affected by whether or not they're allowed to stay," Marks said. "The cases that we hear - they are death penalty cases."

Judge Marks says returning someone to their home country could result in their death or the death of their families. In other cases, deported immigrants faced torture and long prison sentences when they returned to their country of origin.

"Many people don't realize how intensely complicated immigration law is," she said.

According to Judge Marks, there are currently 334 immigration judges nationwide at 57 courthouses. She says the budget allows for 384 on staff but she says they have not been able to hire to get to that point.

She says the US Immigration Court system needs at least twice as many judges as it currently employs and much better technology.

For Dayna Gomez, it took her three years to go through the visa process. Today, she has a work permit and in October will apply to become a legal resident, opening the door for full citizenship in another four years.

"It's literally a dream come true," she says, wiping away tears, "but it hasn't been easy."

Dayna has worked hard to get the right to stay in this country. But individual effort is only one factor in the process. Data reveals that geography also plays a large role in who gets to stay and who is deported.

According to federal data, an immigrant's chances of avoiding deportation varies considerably depending on the location of their court appearance.

Among major courts, deportation rates range from as low as 20 percent (Phoenix) to as high as 87 percent (Houston). Generally, deportation rates are lowest in the Northeast and the West and highest in the South and in Texas. For comparison, New York deports 30.5 percent of its undocumented immigrants while California's number is closer to 39.6 percent. And in Los Angeles in 2016, 22,447 cases ended with undocumented immigrants being allowed to stay in the US; as of July 2017, 15,152 cases got a reprieve in LA.

Judge Schmidt says he's noticed the trend, too.

"If I were an immigrant," he says, "I'd rather be in California than Atlanta, Georgia any day."

The immigration courts say they're committed to increasing capacity and plan on hiring more judges and implementing new technology. But they also say it's up to judges to increase their productivity and reduce delays often associated with continuances. The Trump Administration recently issued a memo encouraging judges to reduce their use of continuances, but some experts worry that will deprive immigrations of due process rights.

The U.S. Immigration Court is not part of the judiciary branch of government but a division of the United States Department of Justice. It's an agency called the Executive Office for Immigration Review (EOIR) and they are responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings.

When asked about the resource challenges and the case backlog, EOIR sent NBC4 this statement: EOIR is committed to a multi-level strategy to maximize our adjudicatory capacity, including the hiring of more judges, working with our federal partners to make the immigration process more efficient, and the increased use of video-teleconference capabilities. EOIR is undertaking a broad, agency-wide effort to review and reform its internal practices, procedures, and technology in order to enhance immigration judge productivity and ensure that cases are adjudicated in a fair and timely manner across all of the agency's courts. Executive Office for Immigration Review records show that through the end of July 2017, the immigration courts had 617,696 pending cases. Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance in order to ensure that adjudicatory inefficiencies do not exacerbate the current backlog of pending cases nor contribute to the denial of justice for respondents and the public.

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