The American Bar Association has released a report on the state of the country’s immigration courts. The report concludes the current system is “facing an existential crisis” because of the unprecedented backlog of cases (around 800,000) and says the entire system is “on the brink of collapse.” From the report’s executive summary:
The state of the U.S. immigration court system has worsened considerably since our 2010 Report… Crucially, the number of cases pending before the immigration courts (which were about 262,000 cases at the time of the 2010 Report) has increased to unprecedented levels. As of December 2018 there were more than 760,000 presently pending cases and an additional 330,000 cases that could be returned to active dockets in short order as a result of recent Attorney General decisions. Ballooning dockets have resulted in increasingly long wait times for cases to be heard…
The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.
The report notes that hiring of immigration judges has not kept up with the number of outstanding cases. Hiring has actually improved under the Trump administration but the report notes there is a concern the new approach will result in politicized hiring:
In April 2017, DOJ announced its plan to “streamline” hiring of immigration judges, estimating that the proposed changes would result in a hiring timeline of less than six months.70 DOJ began implementing this new approach as of February 2018.
While stakeholders broadly agree that improved, faster hiring practices are necessary, DOJ’s new approach has received criticism that it will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring. Indeed, there have been a resurgence in reports of overt politicized hiring of immigration judges by DOJ, leading Congressional Democrats to call for a formal investigation into DOJ’s hiring practices with respect to immigration judges and members of the BIA. While EOIR and DOJ deny these allegations, many commentators remained skeptical.
This concern stems from a lawsuit filed last year by Dorothea Lay. Lay sued after her job offer was rescinded by the Trump administration. She believes she was discriminated against because her application revealed she was pro-immigrant. From CNN:
Lay believes her resume and application would instantly come across as pro-immigrant — fair or not. She has spent decades working on asylum policy, especially the types of issues Sessions recently rolled back with a decision to not consider victims of domestic violence or gang-related crime eligible for asylum. Inside the government, USCIS is perceived as the most pro-immigrant of the immigration agencies, being the agency that bestows visas and citizenship on immigrants.
Her recommendations also came from academics and former Democratic political appointees.
Democrats led by Rep. Elijah Cummings have been involved in investigating claims of politicized hiring though the DOJ has deniedthat is the case.
In a letter exclusively obtained by Fox News, Justice Department Assistant Attorney General Stephen Boyd gave a line-by-line rebuttal, addressing concerns about 14 applicants who are no longer being considered.
“As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation,” Boyd wrote.
I’ll leave it to the lawyers to decide whether this proposal to remove the immigration courts out from under the DOJ is a good one but, apart from the specific solutions, it seems significant that the ABA believes something dramatic needs to be done avoid the collapse of the system.
As we’ve discussed here many times, the rise in asylum claims is part of a shift in the people arriving at the southern border. In the past, the majority were Mexicans looking for work. In the past few years, most migrants have come from Central America for a combination of reasons that include economic motivation and some with a genuine fear of being targeted by gangs back home. These migrants now routinely arrive at the border, cross illegally, and then turn themselves in to claim asylum. Many have learned that they will be released quickly if they travel with a child which is one reason the number of children arriving at the border has risen sharply.


Border Rush: Guards to Release Migrants Without Detention, Ankle Monitors, Says Wall Street Journal



Can Trump use 'emergency powers' to build border wall?
GETTY IMAGES NORTH AMERICA/AFP/JOHN MOORE
NEIL MUNRO
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Border patrol officers will start releasing many of the myriad migrants crossing the Rio Grande without even going through the formalities of temporary detention or strapping removable tracking-devices to the migrants’ ankles, according to a report by the Wall Street Journal.

The policy comes as the migrant wave is expected to reach 100,000 this month, and shortly after Congress again refused to seriously fund a border wall or to fund additional detention beds for migrants, to penalize companies which hire illegals, or to reform border laws or even to bar the courts from cutting loopholes in the border laws. The Wall Street Journal reported:
Starting this week, hundreds of families caught each day in that area are being released by Border Patrol agents, instead of being handed over to U.S. Immigration and Customs Enforcement for potentially longer detention, government officials said. The exact number will depend on how many there is room for in ICE detention facilities, which have filled up as a record volume of families are crossing the border.
The officials said they are making the change because of crowding and safety concerns. The conditions under which the federal government detains migrant families, particularly those with young children, have drawn frequent criticism in the past few years. Two migrant Guatemalan children died in Border Patrol custody in December….
Under the new policy, some families will be processed by the Border Patrol and then released and ordered to show up later to start their deportation or asylum cases.
Few migrants show up for the court hearings where they are supposed to make a plea for asylum.The inflow of economic migrant is good for business because it helps reduce marketplace pressure to raise wages for Americans and legal immigrants. The new decision to further weaken border defenses may accelerate the population movement from Central America population movement into the United States, tweeted Mickey Kaus:
HUH? Why don’t they print this up on flyers and distribute in Central America, to save the coyotes the trouble. This seems a sure-fire way to turbocharge the mass migration, no?Maybe the [administration is] intentionally provoking a crisis to force Congress to act? (If so, seems very risky–Dems and pro-business GOPS will demand all sorts of things in exchange, like amnesties and guest-worker programs. Not what you want to negotiate under a gun.)
“The situation at our Southern Border has gone from a crisis to a national emergency, to a near system-wide meltdown,” Homeland secretary Kirstjen Nielsen said March 18 at Auburn University’s Center for Cyber & Homeland Security. Her prepared speech said:
There is no more fundamental responsibility for a nation.  And yet, the American people have been let down by our government again…and again. I want to cut through the politics to tell you loud and clear:  there is NO  “manufactured” crisis at our Southern Border.  There is a real-life humanitarian and security catastrophe. Late last year, we were apprehending 50,000 – 60,000 migrants a month. Last month, we apprehended more than 75,000—the highest in over a decade. And today I can tell you that we are on track to interdict nearly 100,000 migrants this month …I say this with the utmost sincerity and urgency:  the system is breaking.  And our communities, our law enforcement personnel, and the migrants themselves are paying the price.
Elsewhere, the flow of economic migrants is so great that a bus station is requiring released migrants to wait outside:
Traffickers have established a low-cost bus route through Mexico to deliver thousands of economic migrants from Central America to U.S. blue-collar jobs, according to the Washington Post. The business model is being called the “conveyor belt” system, and large groups of customers are charged from $2,500 to $7,000 per adult and child, depending on amenities, says the Washington Post:
Paying up to $7,000 per adult with child, families are transported to staging areas at ranches and hotels in southern Mexico, where they are organized into bus groups and rushed north along Mexican highways, “stopping only for food, fuel and bathroom breaks,” according to the U.S. law enforcement documents.…
Within 72 hours of leaving the staging areas, the buses arrive at predetermined drop-off points within walking distance of the U.S. border. Migrant families are clustered into groups that have at times exceeded 300 adults and children, and they walk directly across the border, in some cases stepping over barriers in long, orderly lines. They then surrender to U.S. Border Patrol agents and initiate asylum claims.
The bus networks boost the cartels’ profits by maximizing production and minimizing overhead costs, such as the costs of stash houses and gunmen, the Washington Post notes.
Meanwhile, establishment reporters ignore the threat of cheap-labor migration to Americans’ wages and livelihoods.