When most of us hear the words “immigration policy”, we think of border patrol, walls, paperwork or detention. Most of us don’t think about one of the most important elements in a workable immigration system: our judges. Right now, our immigration judges must deal with an incredible backlog of cases (approximately 512,000 as of August 2016), making Donald Trump’s suggestion that we deport 11 million undocumented immigrants not only a heartbreaking prospect for these immigrants and their families but also an unfeasible idea because of our beloved democratic process.
One of the best aspects of living in this country is our guarantee of due process. No matter how much a particular political leader dislikes us or no matter how guilty an angry mob believes us to be, we cannot simply be punished or thrown out of the country until we have been given a fair chance to defend ourselves. Our justice system – while far from perfect – does guarantee us certain rights that distinguish our free country from despotic, tyrannical regimes.
When the deportation of 11 million undocumented people is suggested, we must remember that those 11 million are entitled to have their cases heard by immigration judges prior to deportation. That means 11 million cases would be added to the dockets of already overburdened immigration judges, an impractical approach that would take many years to carry out.
Even without the burden of an additional 11 million immigration cases, the current backlog of over half a million cases highlights a growing need for the empowerment and support of more immigration judges, particularly in states on the southwest border. Dallas, in fact, recently added a judge to help ease the caseload burden. But more judges and a streamlined process are needed in order to more effectively manage such an enormous backlog. Right now, immigration judges must handle more than 700 cases a year, which is twice as many as Federal District Court judges. For years, the judges union has lobbied Congress, with limited success, for more law clerks and other support staff to offset their burden.
As San Francisco Judge Dana Marks has pointed out, it can be difficult to make the right decisions regarding immigrants in her court, in part because the large backlog creates a demand for immigration judges to hear so many cases. “You have to go through some hypotheticals in your brain. Would I treat a young person the same way I’m treating this old person? Would I treat a black person the same way I’m treating this white person? This situation of rush, rush, rush as fast as we can go, it’s not conducive to doing that,” said Judge Marks.
Cultural and linguistic misunderstandings are common in immigration courts. The good news is the Justice Department is actively trying to minimize the role of bias in law enforcement and the courts. More than 250 federal immigration judges attended a mandatory anti-bias training session in August, and this summer, the Justice Department announced that 28,000 more employees would go through a similar exercise.
Experts say the conditions that immigration judges work under — fast paced, high pressure and culturally charged — make some misjudgments all but inevitable. “If you have a high cognitive load, you tend to make more mistakes,” said Kelly Tait, who led the judges’ training session. When the brain has to process large volumes of information quickly, there is a tendency to rely on experiences rather than on unique details in the present. In judging people, for instance, this can mean falling back on generalizations about race, age, country of origin, religion or gender.
If we truly want a workable immigration system that empowers those who have a right to be here with the tools they need to contribute to our society, then we need to invest in a process that bestows timely and just legal rights. Such an approach is not only best for immigrants, but it is also best for our economy. We all stand to benefit when all of our residents are able to pursue their best and highest potential educational, employment and entrepreneurial activities, contributing taxes and adding value to our communities.
If you need the help of an immigration attorney, please contact our highly experienced team today. With 40 years of success as immigration specialists, we are here to help you create your American dream.