Understanding U.S. immigration courts

Immigration

FILE – In this May 14, 2013, file photo, the Department of Justice headquarters building in Washington is photographed early in the morning. The Justice Department says Tuesday, July 2, 2019, the 2020 Census is moving ahead without a question about citizenship. (AP Photo/J. David Ake, File)

MCALLEN, Texas (Border Report) — Immigrants seeking asylum in the United States are waiting an average of 900 days — that’s two and a half years — for their cases to go before a federal immigration judge, as of July 2019. The national backlog of immigration cases currently exceeds 1 million, which is a record, and increases daily as a surge of immigrants on the Southwest border continues.

At the current rate of court proceedings, it could take more than five years just to process all of the existing cases, according to Transactional Records Access Clearinghouse, a nonprofit organization based at Syracuse University that tracks immigration cases. That does not include any future cases, and experts say it is proof of a court system that is overwhelmed and understaffed with only 395 sitting judges nationwide.

This backlog of cases is often cited as a root cause of immigration problems in the United States and further fuels this divisive issue. Some argue that detaining immigrants for many months while they await a court hearing costs taxpayers millions of dollars each year and is inhumane and harsh treatment of those who flee their homelands in search of a better life here. Others, including the Trump Administration, claim that if not detained then immigrants will not show up for their court hearings, further adding to the 11 million immigrants who are believed to be in the country illegally.

“Ninety percent of the people never show up for their hearing,” Vice President Mike Pence told CNN on June 23.

Vice President Mike Pence speaks at the Christians United for Israel’s annual summit, Monday, July 8, 2019, in Washington. (AP Photo/Patrick Semansky)

A Washington Post analysis, however, found that less than half — 44% — of all non-detained immigrants fail to show up for their court hearing, citing a memo by the Executive Office for Immigration Review, which oversees the nation’s 395 immigration judges and their courts.

EOIR: Executive Office of Immigration Review

EOIR falls under the administration of the Department of Justice but is separate from the federal judiciary and its court proceedings operate very differently. For instance, defendants are referred to by their nine-digit federal Alien Registration Number, also called an “A” number. All immigration court proceedings are civil, not criminal; and legal counsel is not provided for defendants (as in other courts,) although they are allowed to hire their own counsel. 

“EOIR all are administrative, as opposed to courts within the judicial branch. It’s very different,” said Efren Olivares, racial and economic justice director for the Texas Civil Rights Project.

The nonprofit organization, which is based in San Juan, Texas, provides pro-bono legal advice and services for thousands of migrants each year. Lawyers for the Civil Rights Project can often be seen outside the Harlingen and Port Isabel immigration courtrooms in South Texas swarmed by confused and scared immigrants who they help walk through the legal process in a foreign land.

Most immigrants struggle with English and are unfamiliar with the American legal process. During immigration court proceedings, a translator sits near the presiding federal immigration judge, and when a defendant’s A-number is called up, the majority of times the defendant’s first action is to grab a pair of well-worn court-provided headphones to hear what the judge is saying in their native tongue. Spanish is the most requested translation, but since 2014 there has been an increase in defendants requesting translations in the dialects of Quiché, Mam, Pocomam and Chol, which are spoken in remote areas of Guatemala, Honduras and El Salvador where an increasing number of immigrants have been coming from.

More and more there is a need to translate in court the dialects of Quiché, Mam, Pocomam and Chol.

Earlier this month, the Trump Administration proposed replacing in-court interpreters with videos at initial immigration court hearings, the San Francisco Chronicle reported this week. It is unclear what effect that would have on the cases, or whether videos would be provided in dialect languages, as well.

Credible Fear Interviews

The first step in requesting asylum is called a “credible fear interview,” which anyone who is seeking asylum in the United States is, by federal law, supposed to receive. This interview can occur one-on-one, in a group setting, or even by video chat, and is used to determine whether they have a genuine fear of persecution if they were to return to their native country, whether they are the victim of a crime and why they left their homeland. This interview usually does not occur in immigration court, but rather at detention and holding facilities operated by Immigration and Customs Enforcement. Immigration advocates say this initial interview is very important and can set the course for future immigration court proceedings, or possible immediate deportation. If they successfully pitch their claims, it will launch them into the EIOR system.

Initial and later court hearings

During a defendant’s initial court hearing, a judge advises them of their rights, records their legal counsel, if any, and then usually sets a next court appearance date, which could be as long as three months to a year.

In subsequent hearings, depending upon judicial findings defendants could be ordered by the judge for immediate deportation. And sometimes the migrants themselves will request to be deported. This usually occurs when they chose to wait for a required set of time in Mexico in the hopes that they can legally try to immigrate again in the future, or if they think their case will likely result in deportation and they want to get it over with.

Immigration courtrooms are usually fairly small, with only a few pews for lawyers and defendants and very little room for family or friends. Federal prosecutors readily refer to defendants as “aliens,” which some people find derogatory, but is what the federal government officially calls anyone who enters the United States without permission.

“It’s just the last three digits, in fact that they call, and when the judge says the name in court sometimes it’s so unusual that that’s a story in itself — that the judge is treating these people like actual human beings,” Olivares said.

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The mission of BorderReport.com is to provide real-time delivery of the untold local stories about people living, working and migrating along the U.S. border with Mexico. The information is gathered by experienced and trusted Nexstar Media Group journalists hired specifically to cover the border.