Amid a heavy backlog in immigration courts in Texas and California, U.S. Attorney General Jeff Sessions on Wednesday said the federal government was considering ways to reduce the number of undocumented immigrants who are granted hearings with immigration judges before being deported. While a legislative solution is preferred, he added, his agency was investigating what it could do absent Congressional action.

The comments were made during a U.S. Senate Judiciary Committee hearing where U.S. Sen. Ted Cruz, R-Texas, pressed Sessions on whether the federal government was still operating under an Obama-era "catch-and-release" policy where undocumented immigrants are not immediately deported.

“That is highly troubling. When I heard those reports in January and February, I told [U.S. Border Patrol agents] ‘Give the administration some time to get their team in place.’ You can’t turn a battle ship overnight,” Cruz said. “It’s now October.”

“We are looking at if there are any things we can do effectively, short of legislation,” Sessions responded. “But there is no doubt Mr. Chairman, we need legislation on this subject and several others.”

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Sessions pushed back against Cruz’s description of the process as a “policy” and said it was instead the current reality because immigration courts are experiencing a record number of backlogged cases. He said that's due to a “loophole” that allows undocumented immigrants who claim a credible fear of returning home the right to appear before an immigration judge in the United States.

“There are so many people claiming [credible fear] and being entitled to hearings that we don’t have the ability to provide those,” he said. “And they are being released into the community.”

The number of pending deportation cases in the country has more than doubled since 2011, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University. That year there were about 297,500 pending cases, but as of August 2017 the number had grown to more than 632,000. More than 100,500 of those cases are pending in Texas, the second-highest number after California’s 118,750.

Advocates argue that the Trump administration’s efforts to make deportations more “efficient” are actually hindering efficiency and jeopardizing due process. In a report released Tuesday, Human Rights First said that an earlier policy of sending immigration judges to the border led to several postponed cases elsewhere and an eventual lack of representation for undocumented immigrants who have access to counsel.

"Recent policies of the Trump Administration have decreased access to counsel in immigration courts and added to systemic inefficiencies," the report states. "The waves of postponements triggered by the attorney general’s decision to send judges to detention centers 'along the border' on detail assignments...have caused lawyers (many of which provide pro bono legal services) to waste their limited resources preparing for hearings that are often cancelled.”

Immigrant rights groups and attorneys are also quick to point out that not everyone who claims credible fear is released while they await a hearing. A recent case out of Texas involved a Mexican journalist, Martin Mendez Pineda, who fled the resort city of Acapulco after he was attacked by Mexican federal officers and later threatened at gunpoint by six armed men, according to case documents provided by his attorney. But after trying – and failing – to be released from immigration detention while awaiting his hearing, he eventually gave up and voluntarily returned to Mexico.

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Sessions' remarks on Wednesday come a week after the attorney general suggested that immigration judges should have quotas in an effort to reduce the current case backlog. The suggestion didn’t go over well with immigration judges.

“Tying numerical case completions to the evaluation of the individual judge’s performance evaluation specifically interferes with judicial independence and clearly will put immigration judges in a position where they could feel forced to violate their legal duty to fairly and impartially decide cases in a way that complies with due process in order to keep their jobs,” the National Association of Immigration Judges said in a written statement prepared for Wednesday’s hearing.

On Monday, at a forum at the University of Texas, Austin-based immigration attorney Virginia Raymond said the judges’ opposition to the proposal speaks volumes.

“Most of them are former [Immigration and Customs Enforcement] attorneys. It’s not like they are bleeding heart humanists who care about refugees and immigrants,” she said. “And if they are saying this doesn’t work, maybe that’s saying something.”

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Read related Tribune coverage:

  • Deal or no deal? Confusion reigned after President Donald Trump offered conflicting statements on the state of a possible immigration deal with Democrats. [Full story]

  • Hundreds of Texans gathered at a historic mission a few hundred yards from the Rio Grande to protest President Trump's proposed border wall. [Full story]

  • Attorney General Ken Paxton announced that his office is accepting sworn complaints against “sanctuary” jurisdictions that prohibit local police from cooperating with federal immigration authorities. [Full story]

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