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Immigration Bill Would Ease Caseloads
The National Law Journal
The nation's overburdened immigration courts could be in line for major reinforcements — hundreds of new judges, clerks and staff lawyers — under Congress' latest proposal to overhaul the immigration system.
The additional positions are needed to shore up the U.S. Justice Department's immigration courts and border-state federal district courts that are falling far behind, said Senator Dick Durbin (D-Ill.), one of the senators known as the "Gang of Eight" who shaped the Senate legislation.
And those courts would get even busier if Congress adds thousands of border patrol officers and a path to citizenship for undocumented immigrants, plans detailed in the bipartisan but controversial Senate bill of more than 1,200-pages.
"We can't realistically say to people, 'We're going to move you through a process that could involve literally millions of people in this country,' without expanding those who will stand in judgment of some important questions," Durbin said on Capitol Hill last month. "We want to make sure that's done on a timely basis."
The Senate voted 68-32 on Thursday to approve the reform bill, which has become a likely centerpiece of President Barack Obama's second term. But a complex piece of legislation like the Border Security, Economic Opportunity and Immigration Modernization Act must first overcome a number of political hurdles in the House of Representatives.
Senate and House Republicans have already voiced concern over the bill. The addition of more judges and lawyers is one of the more minor concerns, and a Republican amendment that would have removed the provision was never voted on by the Senate Judiciary Committee.
"The bill repeats many of the same mistakes made in the 1986 immigration law, which got us into this mess in the first place," Representative Bob Goodlatte (R-Va.), the House Judiciary chairman, said immediately following the Senate vote. "Among my many concerns, the Senate bill does not adequately address the interior enforcement of our immigration laws and allows the Executive Branch to waive many, if not most, of the bill's requirements."
If the House and Senate could agree on a bill with the new positions intact, however, the expansion of the Justice Department's immigration system would be nothing short of monumental. The lawyers, immigration judges and federal district judges who work the system say it can't come soon enough.
As passed by the Senate, the legislation would require the Justice Department to nearly double its number of immigration court judges, with 225 hires over the next three years. Those judges handle the civil side of immigration, including removal proceedings and asylum petitions.
The Justice Department also would be required to provide each of those judges with one staff attorney or law clerk. At present, there is one clerk for every four judges, said Dana Leigh Marks, an immigration judge in San Fransisco and president of the National Association of Immigration Judges.
The bill would require the Justice Department to hire 90 additional Board of Immigration Appeals staff attorneys during the next three years.
In Houston, the combination of swelling caseloads and immigration judge retirements means that some hearings that only take a few hours are being scheduled as far out as 2016, veteran immigration attorney Raed Gonzalez said. Visiting judges from Louisiana conduct hearings via video, and courtrooms are packed.
"It's frantic, it's sweating, it's a bunch of cases, there's a bunch of people in line," Gonzalez said. "It's the biggest mess."
The process is so pressed for time that it can compromise outcomes, said Thomas Ragland, founding partner of Benach Ragland in Washington.
"If that's your case, and you've got three hours to either stay in the United States or be banished forever, that's a big deal," said Ragland, who worked for 10 years as an attorney in DOJ's immigration system. "I think you'd get better decisions, more prompt decisions and more room for analysis and research and some of the things that are sacrificed right now."
Durbin during debates said there are 1,200 pending cases per judge on average. There are now 259 immigration judges in 58 courts across the country and 326,000 cases pending as of the end of 2012, a 75 percent increase from the 186,000 cases pending at the end of 2008.
Marks said the 225 new immigration judges in the bill would allow the system to move all non-detained cases onto the docket for a hearing within about eight to 10 months and to handle detained cases within 60 days.
Right now, Marks is scheduling hearings for February 2017. "Nothing is happening on that case in my mind between now and then," Marks said. "I do not have time on my docket to fit it in."
The bill would provide eight new federal district court judges for California, Arizona and Texas, and a number of temporary district court judgeships that would become permanent.
"The immigration caseload here in Arizona is staggering," Chief Judge Roslyn Silver of the U.S. District of Arizona said in a written comment. "Whether it be through immigration reform or some other effort in Congress, our court is in desperate need of additional judges."
Not everyone thinks the new judges are needed, however. Senator Chuck Grassley (R-Iowa) wrote the amendment to remove the new hires and instead launch a study to determine how many judges the new immigration system would need. The bill provides for no downward discretion in respect to these hires, Grassley said during a committee hearing on the bill last month.
"The reality is we don't know whether the immigration court caseload will increase or decrease under this bill," Grassley said. "Shouldn't there be a study to determine the true need for these judges and additional staff et cetera before we start mandating?"
Todd Ruger can be contacted at firstname.lastname@example.org.