A man in his 40s makes his first appearance in front of an immigration judge at the beginning of 2012. It is soon determined that he’s allegedly been in the United States illegally since the early 1990s, and has previously been arrested for dealing drugs, drunk driving, and a hit-and-run. Over the three months after his original court appearance, his immigration case is postponed, or “continued,” more than seven times.
During the next two years, the man’s case receives more than 30 additional continuances. The reasons for range from an unplanned leave by the immigration judge, to the man’s attorney not answering her phone multiple times for a phone hearing, to the same attorney receiving (more than two dozen times) more time to prepare the case.
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Continuances like this happen every day in immigration courts across the country, and they are a major contributor to a 600,000-case backlog that is plaguing America’s immigration court system. The Department of Justice (where these courts are housed) is now encouraging immigration judges to limit lengthy continuances, especially when there is no good cause for a delay.
America’s immigration courts haven’t always been in dire straits; only six years ago, the pending caseload totaled less than 300,000—less than half of the backlog today. A cocktail of weak and illogical policies in recent years has accelerated the number of cases piling up. Decisive action is now needed to reverse the failures of a lack of leadership on immigration enforcement.
Beginning in 2011, the Obama administration began changing long-standing immigration policy in order to circumvent the laws passed by Congress. These actions included exempting whole categories of illegal aliens from removal by distorting the traditional legal definition of prosecutorial discretion; the creation of a provisional waiver program that is not found anywhere in the Immigration and Nationality Act; and the implementation of Deferred Action for Childhood Arrivals (DACA). These policies sent a clear signal that the administration would not be enforcing America’s immigration laws, resulting in a culture of lawlessness and a surge of illegal immigration across our southern border. And it forced tens of thousands of new cases into the immigration courts, leading to disastrous effects.
Immigration judges exacerbated this situation in certain cases by granting unwarranted continuances that delayed cases for years. Between 2006 and 2015, continuances in immigration courts jumped by 23 percent. That statistic is made worse when one considers that the Department of Justice’s Inspector General reported in October 2012 that in a sample of cases it reviewed, the majority averaged four continuances totaling more than a year (368 days) each. While due process must always be protected, illegal immigrants have powerful incentives to delay their cases for as long as possible, allowing them to live in the country free from legal consequences during the pendency of their case. This only creates a snowball effect of frivolous claims for continuances that were frequently granted.
To properly tackle the backlog and fulfill President Trump’s campaign promises of cleaning up America’s immigration system, this must change. That’s why it was refreshing to see that the Department of Justice’s Chief Immigration Judge issued guidance reminding immigration judges “to be mindful of the effects of frequent and lengthy continuances, particularly when they are not supported by good cause, on the efficient administration of justice for both respondents and the public.”
Our immigration process was broken over the past six years and will require years and many other changes to fix. But with this action, the Department of Justice is finally demonstrating the leadership to deliver a long overdue solution.
Andrew Arthur, the resident fellow in law and policy at the Center for Immigration Studies, served for eight years as an immigration judge. He also worked as staff director of the National Security Subcommittee of the House Oversight and Government Reform Committee.
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