There are almost 2 million outstanding cases in U.S. immigration courts, and with hundreds of thousands of migrants arrested after illegally crossing the southern border before being released into the United States by the Biden administration every month, that backlog is only growing.
Over 500 immigration judges spread out across 66 immigration courts throughout the U.S. hear these cases, and James Varney of RealClearInvestigations recently visited one in New Orleans on the fifth floor of a white skyscraper along the Mississippi River above a Saks Fifth Avenue.
Immigration Judge Joseph La Rocca plowed through about 25 “master calendar” cases that morning, which are preliminary hearings in which migrants with “Notice to Appear” papers given to them when they were processed by Border Patrol tell the judge which country they would like to be returned to if they are deported.
No one is ordered to be deported at these “master calendar” hearings, however. At most, a date is set for a later, more substantive hearing in which a migrant can claim asylum, which is a defense from deportation. Most of those who appear before the judge at the initial “master calendar” hearing don’t have lawyers and are granted a four-month reprieve to hire one. Migrants jump at any chance to delay their case since every day they are in the country, it becomes less likely the government will try and deport them.
“When I started practicing immigration law in Baton Rouge in 2007,” Louisiana State University law professor Ken Mayeaux told Varney, “there was only one immigration judge in New Orleans and at that time, from initial hearing to final decision, was typically four to six months. Now it’s more like four to five years.”
Only two substantive immigration proceedings were scheduled for the afternoon that Varney visited the New Orleans court, and both of those were dismissed without prejudice by the Biden administration prosecutors. An April 2021 Biden administration memo instructed Immigration and Customs Enforcement lawyers to use “prosecutorial discretion” liberally to dismiss as many deportation cases as possible. And that is exactly what they are doing.
Migrants who entered illegally, but have had their deportation case dismissed, are free to move about the country as they wish until they break some other U.S. law.
Most migrants in immigration court will not be granted asylum. Many of them are just like Pedro Alvarez, who told the judge that morning, “I don’t know if I should be saying this, but I want the court to know I came from a poor farm territory, and I’m a high school graduate. I came to this country because I want to find a better life for myself, and I hope to go to college. Our purpose here is just to do better in life.”
Alvarez’s ambition is admirable. But under U.S. law, only those migrants that face “persecution” based on “race, religion, nationality, membership in a particular social group, or political opinion” are eligible for asylum protection.
Alvarez will probably either have his deportation case dismissed or fail to show up for his final deportation proceeding. The odds of ICE agents tracking him down and deporting him, however, are extremely low. He’ll get to stay as long as he doesn’t break any other laws. This is why more and more migrants like Alzarez illegally cross the southern border every month.
