Immigration court a "train wreck"

photo:  Levy and fils

At least that’s how retired immigration judge Paul Wickham Schmidt characterized it recently while speaking at a banquet for the Pennsylvania Immigrant Resource Center (as reported by Rick Lee of the York Daily Redcord). He further added the U.S. immigration court system is “on the verge of collapse”. Continuing with the locomotive metaphor, Schmidt described the court system as “an express train running full throttle into an earlier train wreck and no attempt has been made to clear the track”. He blames the impending disaster on a lethal collision of a mushrooming case backlog, a shortage of judges, a scarcity of defense attorneys, and cuts to legal advocacy groups for immigrants. Meanwhile, the Trump administration has exacerbated the problem by expanding efforts to detain more immigrants, and the Department of Homeland Security has been moving funds toward victims of crimes committed by illegal immigrants and away from legal aid to the undocumented.

Unfortunately amidst the wreckage the first casualty is due process, the right guaranteed by the Constitution regardless of citizenship to fair treatment in the judicial system.

Schmidt detailed the problem facing immigration courts:

• Currently, there are about 600,000 pending immigration cases.
• According to ICE, there are more than 41,000 detainees currently being held in custody. 
• There are not enough pro bono and low bono (legal representation at reduced costs) attorneys for all immigration court defendants.
• Only 14 percent of the detainees held in custody nationwide by ICE have legal representation.
• Depending on the source, there are 250 to 300 immigration judges nationwide to handle that caseload.  The Executive Office of Immigration Review, which oversees the judges and court system, claims 250 active judges. The Government Accountability Office, referred to as the "congressional watchdog," counts more than 300 judges.
• The average wait for an ICE detainee case to be completed is 670 days. The average wait in Pennsylvania is 496 days. 
• The average length of time to appoint an immigration court judge is two years.

Schmidt added further:

• The immigration court system has become a prosecution tool of the Department of Homeland Security and the executive branch.
• Too much emphasis is given to detention.
• For the last 16 years, Republicans and Democrats "have largely stood by and watched the unfolding due process disaster ... without doing anything about it, and in some cases actually making it worse."
• Almost 88 percent of immigration judges come from a government immigration prosecution background.
•  DHS Secretary John Kelly, a Trump appointee, directed ICE to reallocate any and all resources used to advocate on behalf of illegal aliens to the new VOICE Office - Victims of Immigration Crime Engagement.                                                                     (courtesy of Rick Lee, York Daily Record)

​Schmidt, who helped establish the mission and vision of the immigration court in the 1990s, argued that the court was never designed to handle so many cases. Furthermore, some detainees are being held as long as eight years as their cases are scheduled and rescheduled. One reason for the backlog is that the cases are becoming more complicated. Judge Schmidt said that “immigration law is so complicated that even its practitioners have trouble navigating it”. And because immigration court is a civil court, there is no right to a court-appointed counsel. Defendants are essentially on their own. "Asking people (detainees) to represent themselves on their own time and their own dime doesn't exactly make it user friendly," Schmidt said. "The system doesn't bend over backward to seek representation for them."

In York County, where the banquet took place, approximately half of the ICE detainees have legal counsel. Judge Schmidt says the Pennsylvania Immigration Resource Center is to thank for that level of representation. He added, "Virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit."

Click here to read more about the Pennsylvania Immigrant Resource Center.

Click here to read more about Judge Paul Wickham Schmidt.

posted by Amy Levengood