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Immigration court backlog could lead to years-long wait for trials

Backlog tops 1 million cases, greater than typical 700,000
Posted at 12:53 PM, May 27, 2021
and last updated 2021-05-27 15:53:44-04

TUCSON, Ariz. (KGUN) — "Really there's no end in sight to win that backlog will ever end," said immigration attorney, Maurice Goldman.

If you or a loved one has a case before immigration court, you might be in the longest line the court has ever known.

"Well right now there are approximately 1.3 million cases pending in immigration court. That's a pretty significant increase from the number of cases that were pending just 4 years ago," said Immigration judge, Samuel Cole, who spoke with KGUN9 as a member of the National Association of Immigration Judges (NAIJ).

Goldman said one reason has to do with the last Presidential administration and the number of people arrested for violating immigration laws.

"Higher level of enforcement in the trump administration."

The pandemic presented a roadblock, but Cole said the delay's impact will extend well beyond.

"Outside the pandemic, the years that people are waiting is really pretty substantial."

"You might have a case heard, or scheduled for some time 2023, 2024," Cole added.

Goldman said this is in part because immigrants waiting on their trials are more willing to argue their case before the court.

"People are not as willing to just give up like they would have previously. They're going to actually have their day in court to be able to fight their case."

Cole described a problem with how much money is put into the courts versus other aspects of immigration.

"There really is a difference between how much money is an allocated for immigration enforcement and how much money has been allocated for the immigration courts."

The reason? The U.S. immigration court system is not independent, like most other courts in country.

"That's why you see the backlog," Cole said.

"Frankly, the immigration courts just aren't a priority and have not been a priority."

Goldman said he tells his clients the courts will decide their fates, but someone else decides the fate of the courts.

"They may be waiting for the Department of Justice to come down and give them directives on it."

The Executive Office of Judicial Review (EOIR) under the Department of Justice governs the immigration courts.

"Judges used to be able to, administratively, close cases."

Cole said, in the past, this would move cases along a lot quicker.

"That tool has been taken away over the past four years."

He stopped short though, of laying the court's issues, exclusively, at the feet of the Trump administration.

"Immigration courts have been used as a political tool, as a weapon for the immigration priorities whatever administration is currently in office."

For Goldman, the current administration can fix things.

"There is potential for Joe Biden to revert back to the pre-Trump policy of using or discretion as far as who to put in front of the immigration and who to deport."

Going back to a court, he said, that prosecutes people who are actually a threat to the public.

"Versus a mass majority of people who have either no criminal history or very limited, low level misdemeanors."

Cole said the immigration court system would better serve the public's interest as an independent court.

"Many, many organizations have endorsed the idea of an independent immigration court."

Among them he listed his own organization: NAIJ, the Federal Bar Association and the American Bar Association.

The court's authority, the EOIR, provided this statement on the current backlog:

"The Executive Office for Immigration Review’s (EOIR) caseloads are tied directly to, and fluctuate with, Department of Homeland Security (DHS) enforcement and detention activities. EOIR continues to manage its caseload as efficiently as possible and consistent with due process."

Cole said the court's independence must be included in any major overhaul of the nation's immigration policy.

"It's not up to EOIR, it's up to Congress, only something that congress can do by legislation. We're very hopeful that this would happen."