U.S. Customs and Border Protection agents process unaccompanied children in Brownsville, Tx. Officials say that the impact of the situation along the border will ripple through the entire nation’s Immigration Courts, including an already overburdened facility in New York. (Reuters/Eric Gay/Pool)
The urgent need for immigration judges to handle the flood of over 57,000 unaccompanied children who have crossed the Southern border of the United States since October is adding to the strains on an already swamped immigration system in New York and the rest of the country.
At a time when the nation’s busiest immigration courts have been dealing with unprecedented backlogs that have delayed cases for years, the anticipated relief for those courts in the form of new judgeships is being shaped by the demands of the border crisis.
President Barack Obama wants to hire more immigration judges and lawyers to confront the growing humanitarian crisis on the Southwest border, but his plan would still fall short of meeting the needs of the nation’s overburdened immigration courts.
Moreover, the White House’s recent $3.7 billion emergency request faces opposition from Republican lawmakers, who complain Obama has not done enough to stop the surge of children, teenagers and families from Central America who are being held by immigration authorities.
“To say we are overwhelmed is such an understatement that I’ve run out of adjectives to describe how busy we are,” said Dana Leigh Marks, president of the National Association of Immigration Judges.
In New York City, where there are a total of 30 immigration judges, the number of pending cases jumped to 51,109 on June 30 from 47,841 nine months earlier, and some hearings are being scheduled as far off as 2017. Nationwide, during the same period, the number of pending increased to 375,373 from 350,330.
While the nation has been focused on the humanitarian crisis at the border, where the largest percentage of the 57,000 children from El Salvador, Honduras and Guatemala who have streamed into the country have been held, some have headed north, adding to immigration dockets in New York City and other metropolitan areas.
Anne Pilsbury, Director of Central American Legal Assistance in Brooklyn, said her organization handles hundreds of cases at any one time and the numbers are growing.
“There’s a huge Central American population that’s been here for years, and kids have been coming up and trying to join their parents for a long time. But lately it’s become a flood,” Pilsbury said.
At 26 Federal Plaza, the largest of the city’s two immigration courts, there are five juvenile dockets, with each one called once a month. The dockets range from 50 to 70 cases, but that number is expected to increase.
The Safe Passage Project at New York Law School works with about 180 volunteer attorneys to provide legal representation to unaccompanied minors. One of the attorneys, Claire Thomas, an adjunct law professor at New York Law School, said the juvenile docket she handled Thursday, from 8:30 to 1 p.m., with 53 cases called, was typical.
The minors were accompanied by sponsors who can be family members, family friends, social workers or representatives from social service providers.
Safe Passage had about 40 people working with the children on the docket, with lawyers, interns students and translators there to help with the cases. Thomas said the need for lawyers to help children at risk is enormous.
“Having lawyers makes all the difference—the cases move so much more efficiently when they have representation,” she said.
Children who are apprehended at the border by customs enforcement are held for 72 hours and then turned over to the Office of Refugee Resettlement of the Department of Housing and Human Service, which performs a background check and places them with a sponsor.
If there is no sponsor, the child remains in detention. Those who claim ties to the New York area may be sent there.
The children are given a notice to appear in Immigration Court, but the date is usually four to six months in the future, meaning the full impact of the current exodus has yet to be felt in New York.
Maria Navarro, the supervising attorney at the Legal Aid Society’s Immigration Law Unit in New York City and Kathleen Maloney, and Tina Romero, staff attorneys in the unit, said the situation is getting worse for the already-overburdened dockets in immigration courts with too few attorneys for children. They said their clients are fleeing things like domestic violence, substance abuse and rape.
Maloney recently checked with the Office of Refugee Resettlement for the number of children it served.
The agency typically helped place 7,000 to 8,000 children annually pending their immigration proceedings. In 2012, it served 13,000 minors, and in the past 12 months, it served 25,000. She said the agency is predicting applications from 60,000 children in the 2014 calendar year.
From January to early July, the agency has sent about 3,300 children to New York sponsors pending their proceedings, according to Maloney.
Even before the current influx, the Obama administration had been trying to address understaffed immigration courts run by the Department of Justice.
The administration had been working to hire some 30 judges to “backfill” following a hiring freeze, when Obama submitted a budget request in March for fiscal year 2015 that asked Congress for $17 million for 35 new immigration judges and support staff and 15 Board of Immigration Appeals attorneys.
Now, the White House has made an emergency request to Congress that would allow the Justice Department to hire 40 immigration judges and support teams. In Dallas, Obama said he hoped to more quickly process cases and remove immigrants who don’t qualify to stay in the country.
Of the delays, he said, “A lot of it has to do with the fact that there’s not enough capacity, both in terms of detention facilities but also in terms of judges, attorneys, space in order to process these things more quickly and expeditiously.”
In New York and other cities, judges are equipped with videoconferencing equipment, so judges at 26 Federal Plaza may be drafted to help fill the gap in the cases of children being held at the border. Some money in the emergency appropriation would expand courtroom capacity through even greater use of videoconferencing and other technology.
The emergency request would include $1.1 million for an unspecified increase of immigration litigation attorneys and $15 million for lawyers for children in immigration proceedings, officials said. Another $2.5 million would expand legal assistance to adults and custodians of children in the immigration court system.
Juan Osuna, director of the Justice Department’s Executive Office for Immigration Review, told Congress on Wednesday that the department would reassign immigration judges to the Southwest border.
There has been no announcement of New York judges transferring to the border.
The shift “is likely to impact the dockets of immigration court locations nationwide,” Osuna told the Senate Homeland Security and Governmental Affairs Committee. “Therefore, [the review office] will also focus its attention on hiring new immigration judges to adjudicate cases in immigration courts around the country.”
A spokeswoman for the Executive Office of Immigration Review said Thursday the new hires would go to court locations “where the agency determines the need is greatest.”
That will depend on four priorities of the administration: unaccompanied children, adults with children in detention, adults with children released through ‘alternatives to detention’ and other individuals in detention.
“We expect that this will mostly be in courts in large urban areas, and at or near DHS detention center,” said Kathryn Mattingly. “But as a practical matter, if the border crisis continues into next year, we expect the new hires will be going to almost every immigration court around the country, as the effect will likely be felt everywhere.”
Specific locations have not been chosen, she said.
Marks, an immigration judge in San Francisco, called Obama’s request “better than nothing” but “absolutely essential.” Even with the additional help, she said, the immigration courts would have fewer judges than their historical high of 272. Additionally, more than 100 judges are eligible to retire this year.
“And the worse the working conditions get, the more stressful the job becomes, the more likely they will be to retire at the earliest possible time,” she said.
Combined, the 40 judicial teams Obama is seeking, plus the 35 teams he’s requested for next year, would provide sufficient resources to process an additional 55,000 to 75,000 cases annually, the White House said.
Still, that number would fall far short of the number of judges requested under immigration reform legislation that the Senate passed in June 2013. The Border Security, Economic Opportunity and Immigration Modernization Act would nearly double the number of immigration court judges, with 225 hires over the next three years. However, the House never voted on the bill, and Obama and House Republicans have all but abandoned it during this Congressional election year.
The emergency request included some legal assistance for youths facing deportation but wouldn’t meet the need and is not guaranteed, the ACLU said.
On Wednesday, the American Civil Liberties Union and other groups, along with K&L Gates, filed a nationwide class action challenging the federal government’s failure to provide thousands of children with legal representation during deportation hearings.
“If we believe in due process for children in our country, then we cannot abandon them when they face deportation in our immigration courts,” said Ahilan Arulanantham, senior staff attorney with the ACLU’s Immigrants’ Rights Project. “The government pays for a trained prosecutor to advocate for the deportation of every child. It is patently unfair to force children to defend themselves alone.”
“It’s sad that American immigration law isn’t any more helpful to children than it is for adults,” she said.
@|Todd Ruger is a reporter for The National Law Journal, a New York Law Journal affiliate. He can be reached at email@example.com. Mark Hamblett, a New York Law Journal reporter, can be reached at firstname.lastname@example.org. Andrew Keshner contributed to this report.