The US Immigration Court System Is Far From Normal

By Benjamin J. Hulac | Washington Correspondent For the NJ Spotlight News

WASHINGTON — The posters are on the courthouse walls and in courtrooms. Deport yourself, they say. Plead guilty. The U.S. government mails them to people with immigration court dates — refugees and asylum seekers, children and adults, people with criminal records and those without.

These posters, in blue-and-red with white text and a scannable smartphone code, lay out the benefits of “self-deportation” and the consequences of staying in the country.

“Can you imagine going into a criminal court and seeing a sign that says, ‘Just plead guilty,’” Rekha Sharma-Crawford, an immigration attorney in Kansas City, said in an interview with NJ Spotlight News.

“These posters are all across immigration courts in the country,” she said. “They put them up in the lobby of the courtroom.”

“It’s not what you think of for normal court,” Sharma-Crawford said. “These are not fair hearings,” she said. “At this point, we’re not even putting up a facade of fairness.”

These posters, new under this Trump administration, mark one of the ways the 71 U.S. immigration courts nationwide — an overburdened and under-scrutinized system within the broader federal apparatus that processes millions of immigration cases in America — are not like regular federal civil and criminal courts.

Courts in name only?

In these courts, people are not guaranteed an attorney. Rules of evidence are more relaxed than in other courtrooms. Procedural rules are haphazard. The burden of proof is on the noncitizen, not the government. Unlike other federal judges, judges in immigration courts are not independent, since they work for the Justice Department, like the prosecutors. And the U.S. attorney general, Pam Bondi, a political appointee and former personal attorney to the president, can and has fired immigration judges.

The term “immigration court” is misleading, said Adriel Orozco, senior policy counsel at the American Immigration Council, a nonpartisan advocacy group.

“These are really administrative bodies. These are attorneys who have been appointed by the attorney general,” Orozco, an attorney, said in an interview with NJ Spotlight News, adding that “they are influenced heavily by the administration” that appointed them.

Immigration judges, who are not confirmed by the Senate, typically serve two years on a “probationary” status before their jobs become permanent.

In the spring, the Executive Office for Immigration Review, the wing of the Justice Department that staffs the courts, made the decision not to “convert half of probationary immigration judges” to permanent roles, Massachusetts senators Elizabeth Warren and Ed Markey, both Democrats, wrote in a July letter to the acting head of the office.

Like other Democratic lawmakers, they suggested that holding back these judges was a purely political maneuver.

“We are deeply concerned that this decision may have been made for politically motivated reasons — and that such politicized conversion decisions could become a trend for upcoming classes of IJs, eroding Americans’ faith in our nonpolitical immigration court system,” the senators wrote, using the abbreviation for immigration judges.

Massive caseload

Compounding this courtroom thicket is the roughly 3.9 million immigration cases nationally, a number that has steadily swollen for decades, from about 700,000 at the end of the Obama administration to the immense volume today.

Private prison companies see revenues surge from ICE detentionsPresidential administrations since George W. Bush’s have tried without success to cut into the backlog.

In the federal budget cycle for 2024, the Executive Office for Immigration Review received 1.8 million new cases.

The caseload is unlikely to shrink soon. In writing a new law, Congress set aside about $170 billion for hardline immigration measures — money to build detention centers and border checkpoints, hire border agents and recruit Immigration and Customs Enforcement officers — but a sliver of that total will go to improve the guts of the immigration court system, an operation that requires judges, translators and support staff.

The finances

By contrast, the law allocated $1.25 billion to hire support staff and expand courtroom capacity.

“That just shows the disparity,” Orozco said. “We haven’t seen a commensurate increase in the adjudication system.”

In its latest annual appropriations request to Congress, the White House requested $844 million for EOIR — flat from the current year.

‘Let’s not blur this. Nobody is against legal immigration of good people coming to America. That’s the way America was built.’ — Rep. Jeff Van Drew (R-2nd)

Republican appropriators in the Senate and House responded with less money for the agency: $804 million and $844 million, respectively. Congress will debate legislation to fund the government, including money for EOIR and other immigration offices, when it returns to Washington next month. Republicans, who hold majorities in both chambers, are unlikely to agree to more funding for the courts.

In the new federal law, Congress also capped the number of immigration judges at 800. There are fewer than 700 judges today, and in a productive year, they get through about 700 cases or more apiece.

‘Practically dysfunctional’

The glut of cases leads to bottlenecked caseloads and courts under pressure from the Trump administration. At Newark Immigration Court, the backlog is more than 210,000. For the Kansas City court, it’s about 53,000 spread between three judges.

“They need more processing power, more funding,” Orozco said. It can be hard to contact staff by phone, he said. “Immigration courts are practically dysfunctional. You can’t get a live person.”

History of alarming practices widespread across ICE sitesUnder President Donald Trump, the administration has set a target, which it is on track to miss, of deporting 1 million immigrants this calendar year.

On a July trip to Scotland, where his ancestors lived before they emigrated to the U.S., Trump said immigrants were “killing Europe” and that the continent’s political leaders should get their “act together.”

Trump, who while campaigning in 2023 said “immigrants are poisoning the blood of our country,” has said it’s impractical to give an immigration hearing to everyone who entered the U.S. without authorization. “[W]e cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” Trump posted online in April.

Jeffrey Chase, a former federal immigration judge, told NJ Spotlight News by email that “the administration seems intent on bypassing the Immigration Courts to the extent possible, likely because judges act more independently than this administration would like.”

While the Sixth Amendment to the U.S. Constitution provides certain legal rights to defendants in criminal trials, like right to counsel and a public and speedy trial, immigration cases are classified as civil proceedings, so those protections don’t apply.

Short shrift from the Trump administration

“There’s no right to appointed counsel,” said Sharma-Crawford, a member of the American Immigration Lawyers Association. Asked if the legal rights of her clients have been violated more during this administration versus others, she answered quickly. “Oh, one hundred percent.”

‘We have about 680 immigration judges and about three million pending immigration cases. There’s no way they can address all of those needs. It will take them ten years just to get through the backlog that we have now.’ — Sen. Andy Kim (D-NJ) told WPIX.

It may take years for an immigrant’s court date to arrive. The majority do not have attorneys to help them through that process, and age does not matter, said Orozco.

“They can be babies, a few months old,” Orozco said. “They can be elders.”

Immigrants without counsel often try to help each other, he said, but language can be a barrier. “A lot of times, people don’t just really understand what’s going on,” Orozco said. “It’s a sad scene.”

What Republicans think

Republicans largely criticize the immigration court system as expensive and view a policy of the Biden administration that allowed alternatives to immigrant detention, such as GPS monitoring or phone check-ins with immigration staff, as a way of letting dangerous people into the U.S.

Texas Sen. John Cornyn, a former state judge, said immigrants accused of crimes and facing the threat of deportation often never appear in court.

“Many of these individuals simply did not show up, forfeiting any right they had to claim they could legally stay in the United States,” Cornyn said. “The idea that someone could break our laws, enter our country illegally, and then be entitled to all the rights and privileges of an American citizen is awfully far-fetched, and it is not the law.”

Many such as Ohio Republican Sen. Bernie Moreno, who was born in Colombia and came to the U.S. as a five-year-old with his family, have said immigrants are abusing the immigration system by filing claims for political asylum.

In January, Moreno introduced a bill to make it more difficult to receive political asylum.

“Let’s not blur this. Nobody is against legal immigration of good people coming to America. That’s the way America was built,” Rep. Jeff Van Drew (R-2nd) said at a June congressional hearing about federal immigration policy. “The system is overwhelmed by fraud and abuse,” Van Drew said. “The more we let bad actors come into the system, the more it becomes harder for the good actors to succeed and make their way to America.”

In his Senate campaign last year, Sen. Andy Kim (D-NJ) said in an interview that the country needs more immigration judges.

“We have about 680 immigration judges and about three million pending immigration cases. There’s no way they can address all of those needs. It will take them ten years just to get through the backlog that we have now,” Kim told WPIX. “The practical things that show we can take care of our own borders while staying true to a country that wants to make sure that immigration is true to our heritage.”