“I think most people would be incredulous at what really happens in immigration court and which sometimes passes for due process,” said Paul Schmidt, a former immigration judge for the Arlington Immigration Court.
“Our courts today are dysfunctional,” stated John F. Gossart, Jr., a former judge for the Baltimore Immigration Court.
“In essence, we’re doing death penalty cases in a traffic court setting,” explained Judge Dana Leigh Marks, current president of the National Association of Immigration Judges.
Various clips of former and current immigration judges describing the horrors of immigration courts were shown during a segment of a recent episode of Last Week Tonight, as host John Oliver exposed the widespread injustice that occurs within these courts. Although immigration court may not have the visceral appeal of Judge Judy or The People’s Court, the results of these hearing can drastically change someone’s life or, at worst, even end it.
According to Oliver, there are several significant factors that have contributed to the current state of many immigration courts, such as:
- Massive backlog of cases – Starting with a surge in immigration from Central America, combined with an increased immigration enforcement and a significantly slow rate of hiring judges have all contributed to the substantial backlog. According to the TRAC: Immigration Court Backlog tool, approximately 684,583 immigration cases are now backlogged, which is double the amount of cases from 2009. The average wait time to get a hearing is three years in San Francisco, four years or more in Atlanta and San Antonio, and five years in Chicago. If you are waiting for that amount of time, it can be extremely harmful to your case since evidence for the claim can become stale and witnesses who can help you can either die or disappear.
- No right to public defender – While immigration courts have the trappings of a criminal court, such as getting arrested, being detained, and arguing against the government, they are actually considered to be civil courts. Since these cases are not criminal trials, immigrations judges are only required to decide whether or not someone can stay in the United States. So, unlike criminal court, it is not mandatory for the federal government to provide lawyers to defendants who cannot afford them. According to “A National Study of Access to Counsel in Immigration Court” in the University of Pennsylvania Law Review, only 37 percent of immigrants in these courts have legal counsel, meaning the majority of them are representing themselves. Oliver highlights that undocumented immigrant children, some as young as two years old, end up representing themselves in immigration court.
- Immigration courts are controlled by the Department of Justice (DOJ) – Although you may assume that immigration courts are part of the judicial branch, they are actually part of the executive branch. Specifically, they are run by the DOJ, which makes them subject to ever-changing political priorities. Currently, the boss of all these judges is U.S. Attorney General Jeff Sessions, who has the power to step into immigration cases within these courts and review them himself. In one case, Sessions dug into the Board of Immigration Appeals archives and overturned a ruling from 2014, which made all asylum cases entitled to a hearing before their claims can be rejected.
Due to the harsh reality of immigration courts, those waiting for their cases to be heard need experienced legal representation from a qualified immigration lawyer on their side in order to help you navigate the complexities of immigration law and obtain the most favorable outcome possible. As Oliver has shown, representing yourself only leaves you vulnerable to be taken advantage of by the system.