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Opinion: Enough of Border Crackdowns. Try Staffing Up the Courts

Untenable backlog in our immigration court system is prompting tough choices

Immigrants and their supporters rally outside a federal immigration court in February 2017. With the government shutdown in full swing, most immigration courts are closed. (Drew Angerer/Getty Images file photo)
Immigrants and their supporters rally outside a federal immigration court in February 2017. With the government shutdown in full swing, most immigration courts are closed. (Drew Angerer/Getty Images file photo)

It was a week of recriminations as lawmakers, civil society organizations and the public slammed the Trump administration’s “zero tolerance” criminal prosecution policy that split families apart at the U.S.-Mexico border.

The outcry caught the administration flat-footed, leading to a new executive order that supposedly keeps children with their parents. But the fix still requires families to be detained (possibly in violation of an existing court order), and it doesn’t address the key issue that is prompting these hard choices in the first place — the untenable backlog in our immigration court system.

Cases now have an average waiting period of almost two years before reaching an immigration court judge, leaving people in limbo. The backlog forces the administration to choose between releasing families into the United States or detaining them for extended periods of time. And that’s bad for border security. If potential immigrants believe the risk of immediate deportation is low, more will try to cross illegally.

The answer is not simply to speed things up. Pushing the system to work faster could lead to charges that it’s not fair to those with valid asylum claims, or that due process is being denied — both of which undermine public confidence. It’s no wonder that hard-line policies like separating or detaining families begin to seem like attractive, if morally questionable, ways to secure the border.

The moral and ethical shortcomings of such a separation policy are clear. But one failed policy doesn’t mean we should abandon efforts to enforce the nation’s immigration laws. We must ensure that we control and manage our borders — and we have to do it without undermining our moral standing by imposing undue harm.

Clearing their desks

Funding our understaffed and overstretched immigration court system balances these two objectives.

As the Bipartisan Policy Center has noted in the past, the immigration court backlog is growing. So far in fiscal 2018, the court system is clogged with approximately 714,000 pending cases, a 283 percent increase from 10 years ago. That’s an average of more than 1,900 assigned to each of the nation’s 321 immigration judges.

Yet immigration judges can only do so much. They’re able to complete just 678 cases a year. While the Trump administration adopted a quota system to up that number to 700, we still estimate the backlog would not clear until 2040 at the earliest.

Improving the operation of our immigration court system is a better solution than the administration’s policy of separating families at the border.

Watch: Activists Play Audio of Separated Children in Front of White House

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The removal process through the immigration court system allows families to remain together, since judges can oversee a hearing for an entire family at the same time — something that is impossible if parents enter criminal proceedings or are separated from their children.

It would also allow for quicker decisions about whether these families qualify for asylum or other relief. That would satisfy the administration, which asserts that many asylum claims are invalid and most will be denied anyway. But with less pressure on the courts, judges could also ensure due process for the immigrants, reassuring advocates that the process is fair.

More bang for the buck

This will require significantly more resources.

The immigration courts have not seen major increases in decades. We estimate the addition of 375 judges and court teams would help the system eliminate the current backlog by the end of 2019 — costing just over $400 million, less than 2 percent of the $25 billion proposed for the border wall.

It would certainly cost less than the prosecution and separation policy, which costs $213,000 per individual for an average case. Shorter case times would also limit time in detention or release to await hearings, both saving money and reducing the expectation that those who come illegally will be able to stay in the U.S.

The funding should not just add judges, but also court staff like law clerks and attorneys. Increasing the system’s capacity will allow for faster decisions on whether an immigrant is entitled to stay or should be removed. This, more than simple at-the-border efforts, would be more likely to deter future illegal border crossings.

While these proposals won’t receive plaudits from immigration advocates or enforcement hard-liners, they address the faults of a policy separating families at the border while maintaining the integrity of our immigration system. And we don’t need to sacrifice our moral standing as a nation to do it.

Cristobal Ramón is an immigration policy analyst at the Bipartisan Policy Center.

Theresa Cardinal Brown is director of immigration and cross-border policy at BPC and served in the Department of Homeland Security during the George W. Bush and Obama administrations.

The Bipartisan Policy Center is a Washington, D.C.-based think tank that actively promotes bipartisanship. BPC works to address the key challenges facing the nation through policy solutions that are the product of informed deliberations by former elected and appointed officials, business and labor leaders, and academics and advocates from both ends of the political spectrum. BPC is currently focused on health, energy, national security, the economy, financial regulatory reform, housing, immigration, infrastructure, and governance. Website | Twitter | Facebook

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