Sarah Sherman-Stokes is a clinical instructor and the associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.
America’s immigration judges have long been overburdened and under-resourced. One immigration judge has compared her job to “doing death-penalty cases in a traffic-court setting.” The stakes are high, while support and procedural protections for noncitizens facing deportation are negligible. It’s no surprise, then, that immigration judges suffer greater stress and burnout than prison wardens or doctors in busy hospitals.
Now, the Trump administration is making a difficult situation almost untenable. In an effort to expand and accelerate the deportation machine, the Trump administration has hit immigration judges with a one-two punch: dramatically increasing their caseloads and, at perhaps the worst time, canceling the annual week-long training conference for immigration judges. The impact on the entire removal system — and, more importantly, on the rights and lives of our most vulnerable noncitizen neighbors — will be devastating.
On average, an immigration judge completes more than 1,500 cases per year, with a ratio of 1 law clerk for every 4 judges, according to a recent report of the National Association of Immigration Judges. By comparison, the typical district court judge trying civil suits has a pending caseload of 400 cases and three law clerks for assistance.
This imbalance is poised to deteriorate even further. In January, the administration issued an executive order that effectively repealed and replaced a tiered system of immigration enforcement and removal priorities crafted by the Obama administration, which focused deportation efforts on the most serious offenders. President Trump’s executive order places a priority on every noncitizen suspected of violating the law. This includes noncitizens who have been charged with (but not convicted of) any offense or who have committed acts that constitute a criminal offense (though they have been neither charged nor arrested). In fact, a recently leaked February 2017 memo from an Immigration and Customs Enforcement official is even more explicit, instructing ICE agents to “take enforcement action against all removable aliens encountered in the course of their duties.” It adds that the agency “will no longer exempt classes or categories of removable aliens from potential enforcement.”
These directives, taken together, obliterate the presumption of innocence until proven guilty — a principle long-cherished in the criminal-justice system but already thinly applied in the immigration context — as well as any semblance of prioritization. Immigration officers must now prioritize enforcement for noncitizens thought to “pose a risk to public safety or national security.” Those caught in this ever-widening net of enforcement will be apprehended, detained and made to face their deportation with no right to counsel, except at their own expense.
Under the Obama administration, there was limited — but important — prosecutorial discretion exercised in immigration enforcement. When determining whether to apprehend, detain or place someone in removal proceedings, ICE had to consider criteria including whether that person had a serious physical or mental illness, was disabled, elderly, pregnant or nursing, or demonstrated that they were the primary caretakers of children or an infirm person.
No such considerations will be taken into account under the new administration, adding to an already bulging docket more of our society’s most vulnerable: the mentally and physically ill, the disabled, the very young and the very old. Each of these people must navigate a complex judicial process, often without counsel and with few procedural protections.
Make no mistake: The Obama administration already operated a well-oiled deportation machine. By the end of last year, there were more than 542,000 pending cases in immigration courts nationwide, up from a then-all-time-high of 267,752 in 2010. This backlog itself posed unprecedented demands on the limited time and resources of already overburdened immigration judges.
But the Trump administration threatens to make matters worse: As immigration dockets expand, the Justice Department confirmed that it has eliminated what little continuing judicial education and professional development once existed for immigration judges. Historically, our immigration court system reserved a week each year for such training to prepare judges for everything from the exceptionally dynamic case law to ethics training. Such training is mandated for judges by most state bars, but now immigration judges will have to find their own time to fulfill these requirements.
The Trump administration’s apparent resolve to accelerate deportations, doubling down on the Obama administration’s pace, means that more and more of our most defenseless noncitizens will be dropped into an increasingly overburdened and under-resourced bureaucracy. Immigration judges — without the critical training and administrative support they need — will be asked to make life-altering, and potentially life-threatening, decisions for the vulnerable before them.
This cocktail — combining significantly increased enforcement, an absence of meaningful procedural protections for noncitizens, and judges who are untrained and unsupported with increasing demands on their time — will further perpetuate a rapidly expanding system of injustice.
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