On Tuesday, President Obama requested $3.7 billion in “emergency” funds from Congress to address the urgent immigration crisis along the southwestern border.
The proposal includes a request of $45.4 million “to hire approximately 40 additional immigration judges and support teams, including those anticipated to be hired on a temporary basis.”
Although the funding request has several proposals that may appear prudent in theory, perhaps even “shovel-ready,” the hiring of additional judges will not be effective in the timely resolution of the catastrophe at the border.
According to the Department of Justice, the more than 260 immigration judges in 59 immigration courts nationwide already have a backlog backlog of 366,758 cases.
Moreover, it will take months to find and train judges qualified to handle immigration cases to the standards outlined by the Department of Justice. If they were hired today, it would be next year before they were ready to hear cases.
Also, immigration judges are not Article III judges—who sit in a co-equal branch of the federal government. Rather, immigration judges work for the executive branch.
President Obama could direct Attorney General Holder to order the Chief Immigration Judge to create a special streamlined docket to handle the surge cases on a last-in-first-out basis. Rather than allowing those cases to drift into the regular detain/non-detain docket, the administration could order the Chief Judge to fast-track these cases in this “surge case” docket. Holder could order the Chief Judge to relocate immigration judges from less geographically active immigration courts in the nation to the newly created “surge docket” tomorrow.
Time is of the essence. If this surge is not addressed quickly, this explosion of cases will languish in the normal course of the regular docket. And if the administration wants to further delay proceedings and due process, it will ship those unaccompanied minors to other states, increasing the chances their cases won’t be heard for months or years and that they will remain in the country permanently.
Some of those who recently arrived at the border are not unaccompanied minors but adults. And those adults, including those with children, are not subject to the William Wilberforce Act and could be put into the special docket as well.
There is another complicating factor. Among illegal aliens who receive orders of deportation, it has become routine to evade orders and continue living illegally in communities across the United States. According to former immigration judge Mark Metcalf, “enforcement of deportation orders is now nearly non-existent.” In fact, the most recent records obtained by U.S. Customs and Immigration Enforcement indicate a total of 469,157 fugitive illegal aliens living in the United States after receiving deportation orders.
Even if the DHS executes removal orders, the United States has agreed to limit the number of illegal aliens it sends back to various countries over any given month or year through “memos of understanding” with several nations whose citizens travel to the United States illegally. Given the unique nature of the emergency at the border right now, it would be prudent to revisit those agreements.
Perhaps the immigration judgeships are simply not as “shovel-ready” as the president expects. Rather than hiring 40 new immigration judges, the administration should require the Chief Immigration Judge to send sitting immigration judges to the border and create a special docket of surge cases to handle these cases as soon as possible.
