The massive backlog of cases in US immigration courts has made it evermore attractive for many migrants to come to the United States, knowing that they can work legally for years without being deported as their cases inch through the system.
The approximately 650 immigration judges carry a backlog of more than 2.4 million cases, according to Transactional Records Access Clearinghouse (TRAC), an organization at Syracuse University.
“We’re facing a truly daunting volume,” said David L. Neal, director of the US Department of Justice’s Executive Office for Immigration Review, during a colloquium.
Last year, 313,000 cases were terminated but the Department of Homeland Security filed 700,000 new ones, “more than twice what we could complete,” he said.
Asylum seekers, who account for 40 percent of the courts’ caseload, wait an average of four years to get their first court hearing, according to the Migration Policy Institute (MPI) think tank. And even more years for the case to be adjudicated.
This opens a window for them to work in the country, save and send money home to their families.
“It is clear that the length of time it is now taking to get through the immigration court process has become a significant pull factor that is driving migration throughout the region,” Blas Nunez-Neto, assistant secretary for border and immigration policy at the Department of Homeland Security, told the colloquium, which was hosted by MPI.
‘Fair’ and ‘efficient’
Migrants coming from Latin America and elsewhere pay human smuggling gangs up to $15,000 to get across the border.
They do so because, according to Nunez-Neto, “once they’re in the immigration court system and they have filed the requisite paperwork, they are eligible for employment authorization.”
“We are… seeing the court system essentially become a proxy and legal pathway for people to come to the United States,” he added.
At one time, most migrants were Mexican, of whom a limited number sought asylum. But now they come mainly from other countries and many “seek protection, although relatively few” obtain it, Nunez-Neto said.
In a new report, MPI makes a series of recommendations to decongest the courts while waiting for Congress to agree on new immigration legislation. The last major legislation dates back 36 years.
The report proposes, for example, encouraging the use of technology like video-conferencing, reinstating the ability of US Citizenship and Immigration Services (USCIS) asylum officers to handle border processing without going through judges, and scheduling new cases on a “last-in, first-decided” basis, MPI researcher Muzaffar Chishti said.
But Jojo Annobil, director of the Immigrant Justice Corps (IJC), an organization that provides legal assistance, criticizes it because “it can’t be a system of ‘last in, first out,’ and people are being shuffled out and deported without representation” by an attorney.
Neal, from the Department of Justice, advocates a balance that respects the dual obligations to be “fair” and “efficient.”
Fewer arrivals
In addition, according to Annobil, the delays are also due to other factors, such as the constant postponement of hearings and the obligation to update the fingerprints of asylum seekers every 15 months.
Migrant arrivals in the United States have been declining since May, when President Joe Biden’s Democratic administration introduced new rules.
It did so to counter the suspension of a health rule that allowed almost all migrants to be blocked at the border if they did not bring the necessary documentation to enter.
According to Customs and Border Protection, in June authorities detected 99,545 migrants at the border with Mexico, 30 percent fewer than in May.
In practice, the new rules restrict access to asylum by forcing migrants to request an appointment through a cell phone application (CBP One) or to process it in the countries through which they transit, for example by using a family reunification permit or a program that authorizes the entry of 30,000 people per month from Venezuela, Nicaragua, Cuba and Haiti for humanitarian reasons.
Several civil rights associations have taken these rules to court, considering them similar to those promoted by former Republican president Donald Trump, known for applying an iron fist on immigration issues.
