Waiting Their Turn

The number of cases awaiting resolution in the federal immigration detention system has reached an all-time high, driven in part by surging backlogs in Texas, especially in San Antonio and El Paso. Blame it on not enough judges.

Nearly 243,000 cases nationally awaited adjudication as of March, according to the most recent data from the Transactional Records Access Clearinghouse, or TRAC, and the advocacy group Human Rights Watch. Texas had more than 18,000 unresolved cases, including an estimated 5,900 in Houston, 3,430 in San Antonio, 3,250 in Dallas and 3,200 in El Paso. The figures for San Antonio and El Paso represent increases of 40 and 28 percent, respectively, since the end of November 2009 — two of the highest percentage increases in the country during that period. The state’s total number of pending cases ranked fourth nationally, behind California, New York and Florida.

The average wait time for a detainee, whether a legal or illegal resident, also peaked — with an average of 443 days in detention a case is reviewed. Detainee offenses range from major violent crimes to minor offenses, such as overstaying a visa.

Calls and e-mails seeking comment from the U.S. Department of Justice’s Executive Office of Immigration Review and the Immigration and Customs Enforcement offices in San Antonio and El Paso were not returned.

TRAC director Sue Long says the Justice Department’s inability to keep pace with judicial turnover has primarily caused the backlog (the government prefers the term “caseload”). In its March report, TRAC noted, “Even as the annual count of backlogged matters has continued to grow, an effort launched in the last years of the Bush Administration to increase the number of specialized judges who process them appears to have made little progress in the first year of the Obama administration.” Despite the surge in detainees, the number of judges actually decreased by two, to 227, from April 2009 to the end of March 2010. Forty-eight judicial posts remain vacant, according to the report.

The DOJ swore in four additional immigration judges this month, but only one will serve in one of the five states with the largest backlog, New York. Two were appointed to Washington and the other to Ohio, which rank 14th and 19th, respectively.

Long said video hearings, which often expedite processing, are an option in some locations. But ICE did not provide information on how detainees are chosen for such hearings or how often they are held.

In its proposed budget for the 2011 fiscal year, the DOJ requested an increase of $11 million to enforce immigration laws and cites the Department of Homeland Security’s increased efforts to remove aliens as the catalyst for the backlog.

The caseload grew 30 percent between fiscal years 2004 and 2009, from 300,000 to 390,000, and the number of new cases is expected to exceed 400,000 annually, by 2011, according to the request. The budget includes money to hire 125 additional employees, including 21 immigration judge teams and 31 attorneys. The DOJ is also asking for a $527 million increase for its budget to “maintain prisons, detention, parole and judicial and courthouse security.” That includes funding for 201 additional positions within the U.S. Marshals Service and 700 to support immigration efforts, “particularly along the Southwest Border.”

The increase in backlogged cases underscores the fine line the federal government must walk in portraying a tough-on-immigration stance, says Kathleen Walker, who serves as general counsel to the American Immigration Lawyers Association and has practiced immigration law in El Paso for more than 20 years. Walker points to a leaked memo published by The Washington Post in February that pinpointed ICE’s efforts to increase its alien prosecutions and removals.

“In this ICE memo, they clearly [say], ‘These are the quotas that you are supposed to be adhering to to be able to be seen as a good officer for ICE purposes,’” Walker says.

The memo, which was sent to field agents by James Chaparro, the director of ICE’s Detention and Removal Operations, suggested its officers were underachieving. "The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals — well under the Agency's goal of 400,000," cites the memo.

As the number of detainees with stalled cases increases, so does the number who are transferred by ICE to detention facilities that can be hundreds of miles away from where they live. They are separated from attorneys, loved ones and friends, immigration advocates argue, leading to emotional trauma. Many transferred inmates are also forced to start over with the process of addressing the charges against them, says Alison Parker, the director of Human Rights Watch's U.S. operations. The transfer makes it difficult for an attorney to stay on a case, yet often the detainee cannot find other help. In the criminal justice system, a defendant is guaranteed at least an appointed attorney, but no such mandate exists in the immigration detention system. A detainee has a right to an attorney but must pay for one or find one willing to work pro bono — both of which are difficult, advocates say.

Aside from the problems posed by the physical separation, actual legal precedents that attorneys have at their disposals can be useless. Parker interviewed an attorney whose client was transferred from Colorado to Arizona — out of the original court's jurisdiction. "The transfer actually changed the case law that was applicable to [the client's] case; it didn’t just change his location in the country. So his attorney said, ‘I can’t represent you anymore,’” she said.

More than 1.4 million detainee transfers occurred from 1999 to 2008, according to the TRAC/Human Rights Watch report, with Texas as one of the top three most welcoming states, behind only Louisiana and California. During the same period, Texas originated more exits from its facilities, transferring 168,106 while also receiving 166,628.

The practice comes despite the government’s admission that it hurts detainees’ chances of a more speedy resolution. “Detainees who are represented by counsel should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly,” Dr. Dora Schriro, the former Director of National Detention Policy, wrote in October 2009.

According to Human Rights Watch, Schirro's directive is not being heeded. The organization's report quotes Holly Cooper, an immigration attorney and clinical professor of law at the University of California, Davis, School of Law: “I have never represented someone who has not been in more than three detention facilities. Could be El Paso, Texas, a facility in Arizona or they send people to Hawaii. Some can just do a merry-go-round throughout the time they are in immigration. I have been practicing immigration law for more than a decade. Never once have I been notified of transfer. Never.”