The Department of Homeland Security issued new guidelines this week that call for hiring 15,000 additional Border Patrol agents and immigration officers. It also wants to greatly expand the number of unauthorized immigrants who are prioritized for deportation.
But between arrest and possible repatriation, those swept up will have court dates. Right now, that can take time.
That's because there are only 300 immigration judges in the country, and pending cases are at a record high. On average, each judge has a backlog of about 1,800 cases to hear. That leads to lengthy delays, said Deep Gulasekaram, who teaches constitutional and immigration law at Santa Clara University.
"It's early 2017 now; it's not unusual to see court dates for people that are in 2020, late 2020," he said. "So we're thinking three years hence for when you actually get your case heard."
That delay impacts the way the immigration courts are perceived inside and outside of government, said Dana Leigh Marks, president of the National Association of Immigration Judges.
"The immigration courts are the legal Cinderellas — we often are forgotten when immigration enforcement is discussed," said Marks. "If we are not given the resources necessary to adjudicate these cases fairly and in a timely fashion, then the removal process will break down."
The Department of Homeland Security acknowledges the current pressures on immigration courts. In issuing the new guidelines, the agency said the "unacceptable delay" in courts allows unauthorized immigrants to remain in the country for years.
One way the order addresses the problem is to expand what's known as "expedited removal" — deportation without ever seeing an immigration judge — to unauthorized immigrants who have been in the country less than two years and are detained anywhere in the country. Under President Obama, this process was used only immigrants arrested within 100 miles of the border and within two weeks of arrival.
"If the administration is going to rely more on expedited removal, they may think that more immigration judges are not necessary," said Ingrid Eagly who teaches at the UCLA Law School. But Eagly said any expansion of expedited removal is likely to be challenged in the federal courts on the grounds that it denies due process.
The Department of Homeland Security also is calling for a "surge" in the deployment of immigration judges to review claims made by people who recently crossed the border.
Still, such a move could have a predictable impact on the courts, said Santa Clara Law's Deep Gulasekaram.
"Diverting current resources to the border is certainly going to make every place else that much more strained," he said.
It's important to note that immigration judges are not like other judges — they aren't part of the judicial branch. They are lawyers hired by the U.S. Department of Justice to administer the law.
NPR contacted the department's Executive Office for Immigration Review, which supervises the immigration courts, to ask about the hiring of new judges and the possible redeployment of judges to the border.
In an email, a spokeswoman said her office still is reviewing the new guidelines and hopes to hire 50 more judges. That would bring the current case backlog per judge down to about 1,500.
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