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The backlog in America’s immigration courts keeps growing
Mismanagement and record numbers of arrivals contribute
REACHING AMERICA’S southern border is by no means the end of the journey for those hoping to enter and be given permission to stay. Migrants must then join an ever-lengthening administrative queue to make a plea to do so before a judge. And now, even the question of where they wait is contested.
Donald Trump’s solution to illegal immigration was to extend a wall on America’s southern border and to demand those with a reasonable claim for staying in the country wait in Mexico while that was processed. From January 2019 the Migration Protection Protocols (MPP), also known as the “Remain in Mexico” policy, forced more than 70,000 people to wait there. any waited more than a year before their first hearing—more than 25,700 are still in the queue. On his first day in office, in January 2021, President Joe Biden halted work on the wall and ordered the suspension of the MPP. (In August that move was denied by the Supreme Court after objections from Republican states along the border. The MPP now seems likely to be reinstated.)
The new president’s apparently softer stance on immigration, as well as the pressures of the pandemic, have encouraged ever more people to try to cross the border illegally. Their number is now the highest in 21 years. In the past seven weeks alone, border agents have sent nearly 50,000 cases to the courts. That is increasing pressure on the country’s already overstretched courts. According to the Transactional Records Access Clearinghouse, a data research centre founded at Syracuse University, immigration courts have nearly 1.5m pending cases in their dockets—the most on record and nearly triple the number in 2016.
The job of deciding whether or not a migrant can stay in America, either as an asylum seeker or on other grounds, falls to 535 judges across 68 immigration courts—on average almost 2,800 cases per judge. Were the judges to rule on three to four cases every business day, it would take at least two-and-a-half years to clear the docket. Scheduling interruptions caused by the pandemic, and the multiple hearings and appeals for each case exacerbate the problem.
The average wait time for a case to get through the system is two and a half years. For asylum seekers, it is nearly four years. To speed things up Mr Biden has proposed extending the authority to grant asylum to agents from the Citizenship and Immigration Service. To clear the backlog, judges have said they need more staff and less bureaucracy, according to a report from the National Association of Immigration Judges. Implementing a standardised case-management system and improving access to counsel would also help. Some advocates would like the courts to be independent, but that is unlikely: immigration courts, unlike others, are part of the executive branch rather than the judiciary. This puts them at the mercy of executive policy decisions. The system is a mess, but these days, so is American immigration policy. ■
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