Immigrants can be deported summarily without a hearing. But those who do get a court case typically end up in a prolonged legal purgatory: The average immigration court case takes 550 days before a decision is handed down — a reality that the White House has promised to change as part of an immigration overhaul.
A path to legal citizenship would dramatically reduce the number of cases winding their way through the overloaded courts, as well as the number of immigrants held in detention. But there are other reforms that the White House has proposed to reduce the immigration court backlog and restore due process to the system, though immigration and civil-rights advocates argue that policymakers could go much farther.
The government can deport certain undocumented immigrants and non-permanent residents without a hearing, particularly if they've committed an offense that's been classified as an "aggravated felony." But those with cases taken up by the immigration courts are waiting longer and longer to have them resolved.
According to Transactional Records Access Clearinghouse, there was a backlog of 323,725 cases as of January 2013 — a number that has continued to creep up. While the average time is 550 days, or about 1.5 years, in certain states, the wait can be much longer. In California, for instance, the average wait in 2011 for an immigration case was 660 days.
What's more, the quality of judges and fairness of the courts' decisions have also been called into question: In a 2010 report (pdf), an American Bar Association commission found that deportation cases in immigration courts were "highly dependent upon the judges before whom they appear rather than on the merits of their cases," saying that the lack of judges and resources have resulted in hastily decided, poorly researched and biased decisions.
What's more, some of these immigrants will spend at least part of that time in detention, at a cost that Homeland Security estimated in 2011 to be $122 a day. The government has made detention mandatory for a wide swath of immigrants to ensure that they show up to their immigration hearings: those convicted of certain crimes; those who pose a national security risk; undocumented asylum-seekers who are unable to demonstrate a "credible fear of persecution"; and unlawful border-crossers, among others.
In 2011, the government put a record 429,000 foreign nationals in immigration-related detention — a number that includes those with cases in immigration court and those who don't receive a hearing. On average, they're detained for 30 days, according to a 2009 Immigration and Customs Enforcement report, though a handful are detained far longer — to the objection of civil liberties advocates. (A 2001 Supreme Court decision ruled that the government can't detain immigrants for longer than six months unless deportation was likely in the "reasonably foreseeable future," with no exceptions for immigrants from countries who won't accept them back.)
In its leaked draft memo, the White House has proposed various reforms to tackle both the court backlog and the expansive detention system: an increase in the number of immigration court judges; greater access to government-funded legal counsel for immigrants in deportation proceedings, who are not automatically granted representation; and creating a new program to create alternatives to detention for certain qualified individuals.
It's a notable step for a hawkish White House that has deported a record number of immigrants and continuously supported congressional efforts to fund more immigrant detention bedspace — and to fill it.
Immigration and civil-rights advocates are enthusiastic about the proposed reforms. "If you look at statistics of people in detention, a very large number have either no criminal history or a very minor criminal history," says Laura Lichter, president of the American Immigration Lawyers Association. "More judges and better courts are key to reducing detention times," says Chris Rickerd, a policy counsel for the ACLU.
But the reforms in Obama's draft bill don't go nearly as far as many outside advocates and experts have been demanding. The ABA's commission on immigration has recommended far more dramatic changes. Unlike most of the country's courts, immigration courts aren't part of the federal judiciary but are instead run by the Justice Department and work for the attorney general. The ABA wants to make them completely independent, improving their quality and accountability. The National Association of Immigration Judges agrees, arguing that it would be the only way to ensure that courts receive the resources necessary to scrutinize cases.
However, it's unclear how much appetite Congress will have for any of these reforms. Immigration court and detention reform wasn't included in the Senate's bipartisan gang's broad principles for immigration reform. And congressional Republicans have been far more interested in ramping up immigrant detention than reducing it in the name of protecting public safety.
In 2011, for instance, the House Judiciary Committee took up a bill that would expand Homeland Security's ability to hold certain immigrants in detention indefinitely, with limited habeas corpus reviews, if they were deemed a national security threat or had criminal convictions. The Center for Immigration Studies, which supported the bill, argues that lax immigration detention laws allow the government to release "murderers, rapists, cop killers, child predators and gang members" back into the community.