Looming over the Trump administration’s struggle to curb illegal immigration is a challenge that no amount of razor wire, troops or steel fencing can fix.
The U.S. immigration court system is facing a backlog of 850,000 cases, and it has fewer than 450 judges nationwide to handle them. New asylum applications and other claims are piling up, creating long delays that Central American families arriving in record numbers know will allow them to remain in the United States for years while they wait.
Trump’s critics blame his administration’s overzealous enforcement approach for making the problem worse by arresting more people who can’t be quickly deported. But the delays have become a migration magnet as powerful as the U.S. economy or the desire to reunite with relatives living in the United States, administration officials say.
Since Trump took office, the backlog has swelled by more than 200,000 cases. The president has grown so frustrated that he has been floating the idea of doing away with U.S. immigration courts, which are part of the Justice Department, not the judicial branch.
“We don’t need a court system,” he told Fox Business Network anchor Maria Bartiromo this week. “We have a court system that is — has 900,000 cases behind it. In other words, they have a court which needs to hear 900,000 cases. How ridiculous is this?”
He added, “What we need is new laws that don’t allow this, so when somebody comes in, we say: ‘Sorry, you got to go out.’ ”
On Wednesday, the White House asked Congress for $4.5 billion in supplemental funding to cope with the border surge. Most of the money would pay for the care and treatment of migrant children and families, but the request does not include a dedicated funding stream to reduce the backlog.
Trump on Monday ordered his administration to draft new regulations that call for courts to tighten the existing requirement to adjudicate asylum cases within 180 days. The measures seek to deter new asylum requests by imposing fees on applicants and limiting their ability to qualify for work permits while waiting for their claims to be heard. Trump hopes that faster scrutiny of asylum claims — and perhaps a higher bar for establishing “credible fear” of returning to their home countries — will turn more people away, especially those he thinks are gaming the system.
But to speed up the process and clear out cases, the government almost certainly will have to ramp up its immigration bureaucracy. The Executive Office for Immigration Review, which runs the country’s immigration courts, is hiring judges faster than ever before. Attorney General William P. Barr told lawmakers last month that the administration has hired more immigration judges than in the previous seven years combined.
“We now employ the largest number of immigration judges in history,” he said. “That is having an impact on immigration cases,” he added, citing increases in case completions.
But the system is still falling behind because of the surge at the border. As of March, the average immigration case had been pending for 736 days, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) center, which compiles immigration court data.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which favors limits on immigration, said Trump’s measures “will keep the backlog from getting worse.”
Restricting work permits will reduce the incentive for immigrants to file fraudulent asylum claims, she said, but added that the Trump administration must institute additional measures — such as detaining families, making the initial asylum screening stricter and fast-tracking their court cases — to have a broader effect. More than 103,000 migrants arrived in March, the highest one-month total in 12 years.
Issuing work permits allows asylum seekers to support themselves and avoid relying on taxpayer assistance, but the nonpartisan Migration Policy Institute said in a report last year that soaring numbers of permits might also be a sign of abuse.
Work permits issued to asylum applicants rose from 55,000 in fiscal 2012 to 278,000 halfway through 2017, government data show.
“The important thing is to put a stop to this mass influx,” Vaughan said. “They should have taken these steps a long time ago. It’s not going to be a magic solution, but I do think it will help.”
For migrants living in the United States whose asylum claims are weak, the backlog can be a blessing, affording them more time to work legally before facing the possibility of deportation. By the same token, it can hurt claimants with strong cases who want to start laying downroots but are stuck in limbo, unsure whether they ultimately will be allowed to stay.
“It’s been good for me, because it gives me more time,” said Carlos Aldana, 30, a Honduran father of two who arrived with a large migrant caravan last May and now lives outside Seattle while waiting for a response to his asylum request.
Aldana had an initial hearing, he said, but he’s not due back in court until September 2020.
“Little by little, we’re getting settled here,” he said.
Asylum seekers with strong cases are often looking for more than legal residency. Obtaining a green card and citizenship would clear the way for them to bring immediate relatives to the United States or allow them to travel abroad. Others are seeking legal status to qualify for certain jobs or benefits or to be able to vote.
“People who should be deported are getting to stay much longer than they deserve, while people who deserve benefits are not getting the opportunity to present their cases in a timely fashion,” said Ashley Tabaddor, president of the National Association of Immigration Judges, a union that represents U.S. immigration judges.
Tabaddor, a California judge who said she was speaking in her capacity as head of the union that represents U.S. immigration judges, said the administration has added more judges in the past two years than during any previous span. But that has not translated to a greater ability to handle more cases because clerks and other support staff have not been added, even as the Trump administration has started imposing quotas on the number of cases that judges are expected to clear.
Tabaddor also said immigration court files have yet to be digitized in a central database, another drag on efficiency.
Advocates for immigrants say Trump has worsened the backlog by rescinding Obama-era rules that set aside cases of people with no criminal records or who are the parents of U.S.-born children. Under Trump, anyone eligible for deportation is fair game for arrest.
“The Trump administration has caused the backlog,” said Kari Hong, an associate professor at Boston College Law School who runs an immigration clinic that provides pro bono representation to immigrants with criminal convictions. “They intentionally mucked it up.”
She said she has clients who have been waiting as long as 10 years for their cases to be decided, and now could be bumped by the new priorities.
“That’s who they’re hurting. They’re in line,” she said. “They’re trying to get their cases heard. They want safety. They’ve been waiting for a long time.”
Hong said the way to curtail the backlog is to legalize most of the 11 million undocumented immigrants, hire more immigration judges and give them the independence to run their own courts away from the political vagaries of the executive branch.
“The way he’s going about this is just making everything worse,” Hong said of the president.
Trump’s decision a few months ago to shut down the government for several weeks paralyzed the immigration court system and postponed thousands of cases, exacerbating the backlog.
Trump’s order tightening rules for asylum seekers marks a turnaround for a president who has attempted to solve the asylum problem by keeping migrants at bay with a border wall, a ban on asylum for border jumpers and other restrictions.
Doris Meissner, who reduced a large backlog as immigration commissioner from 1993 to 2000, said the White House is “begrudgingly” acknowledging that the solution is to allow immigrants to seek asylum, limit incentives to obtain work permits, and to adjudicate the most recent arrivals faster.
“They’ve been trying to deny people access to the system overall instead of just recognizing that there is this system, it is in our laws, do the work,” said Meissner, a senior fellow at the Migration Policy Institute. “This directive last evening at least acknowledges, okay, we’ve got to do the work.”
She said the White House’s “punitive” approaches, such as charging a fee, and relying on the courts instead of asylum officers to handle cases, could also backfire and slow things down. Fees require bureaucratic rulemaking, and courts are more adversarial settings with more lawyers that could slow the process.
A faster way, she said, would be to dispatch trained asylum officers to handle the cases instead. She said asylum officers — and limiting work permits to cases that were not decided after six months — helped her agency cut the backlog from 150,000 asylum claims filed in fiscal 1995 to 30,000 in fiscal 1999, an 80 percent decrease.