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Thursday, Oct 18, 2018
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Backlog of immigration cases stymies immigrants in Florida

It was supposed to be a routine green card renewal for a Thai woman who has called Central Florida home for years.

Instead, federal immigration authorities took her into custody for a decade-old blemish on her criminal record, putting her on a potential path to deportation. The mother of two has been waiting in a detention center since April for a hearing to make her case to stay, said her attorney, John Gihon.

"She's got an existing medical condition that's been made much worse from living in a detention center for months," Gihon said. "There's so many more things doctors could do to help her with, but they can't do that because she's in jail. So she continues to suffer."

Gihon's client should have seen a judge within 90 days. Instead, she has become a casualty of a large and growing backlog of immigration cases.

According to recent federal data, 637,000 cases are pending in the nation's immigration courts. Florida has more than 42,000 of those cases, fourth highest behind California, Texas and New York. In the Tampa Bay area, there are more than 2,100 pending cases.

As the logjam grows, the average wait time for a hearing has also climbed, with some cities seeing court dates set as far ahead as 2022. In Miami, one of Florida's two main immigration courts, some immigrants won't get their day in court until November 2018. In Orlando, it's late 2019.

The delay is frustrating lawyers, judges and activists on both sides of the immigration debate who say the clogged system is deferring due process for hundreds of thousands of people, many of whom have valid claims to remain in the country. Experts say these numbers will continue to grow as President Donald Trump fulfills his promise to ramp up deportation efforts by targeting what used to be low-priority cases.

Along with the delay comes concerns that an overstrained system can't give the time and attention needed to ensure justice for immigrants.

That worries Orlando immigration attorney Chad Brandt.

"This could lead to an outcome where, even after the long wait, people are not truly getting their fair day in court," he said.

• • •

Trump has made immigration one of his top issues, but the backlog can be traced to the creation of the Department of Homeland Security in 2002 after the Sept. 11 attacks.

Since then, funding for immigration enforcement has far outpaced the budgets set aside for the nation's 58 immigration courts, regulated by the Department of Justice.

Under President Barack Obama, spending on immigration enforcement continued to climb while Congress dramatically limited funds for hiring judges. A wave of children and families fleeing violence in Central America added more cases.

"Over the past few years, it's just become dire," said San Francisco immigration Judge Dana Leigh Marks, speaking in her role as president emeritus of the National Association of Immigration Judges. "The courts are on the verge of becoming completely overwhelmed and collapsing under the case load."

To address the problem, the Obama administration ordered the courts to prioritize these cases and temporarily moved judges in states like New York and Florida to hear cases in detention centers along the border. Courts with a larger stable of judges are disproportionately tapped for those details, leaving their home courts understaffed, Marks said.

"The cases that have already been on the judges' dockets in places like Miami and Orlando for two or three or four years get pushed back," she said.

The number of pending cases in the country grew from about 186,000 in 2008 to roughly 516,000 in 2016, according to the Transactional Records Access Clearinghouse, a nonpartisan research center affiliated with Syracuse University. In the same period, Florida's pending cases grew by 63 percent, to 32,233.

Immigrants in Florida are waiting an average of more than 500 days — nearly a year and a half — for their cases to be placed on a docket of one of 35 immigration judges presiding over courts in Orlando and Miami.

Now, the Trump administration's policies are bringing a wave of new cases — about 82,000 nationwide since January.

Though the number of people apprehended at the border has decreased since Trump's election, the administration has removed the Obama-era directive to focus on deporting gang members and other violent criminals.

That will funnel more people into the system, said Joshua Breisblatt, a senior policy analyst at the American Immigration Council, a nonprofit immigrant advocacy group.

"When you're picking up everybody," Breisblatt said, "you're going to start picking up people who have long-standing ties to the community and solid cases for relief."

• • •

The delays affect a wide range of cases.

Some immigrants without a path to legal status don't mind waiting because they'll almost certainly be deported. Criminals make up part of the backlog, but so do undocumented immigrants without criminal records who have valid forms of relief — legal grounds to stay, attorneys say.

"Rules change," said Christian Zeller, partner at the firm Maney Gordon Zeller, which has an office in Tampa. "What might sound like good relief today, two years down the road, that might not be available."

With long waits to see a judge, lawyers worry that their clients' circumstances might change. Undocumented immigrants who have U.S.-born children under the age of 21 could be eligible to stay, said Clearwater lawyer Gerald Seipp. But if their case languishes for years, their children will become adults.

"I think the main problem is the anxiety that the people and their families have while this drags on interminably with no definite end in sight," Seipp said.

In some cases, witnesses disappear or their memories fade, and evidence is lost or becomes outdated. The longer cases drag on, the more costly they become for the courts and for immigrants racking up legal bills in a system that does not offer court-appointed attorneys.

Meanwhile, immigrants who left family members overseas may not see them for years because of legal or practical travel restrictions and aren't able to help them escape dangerous conditions back home.

For some, the delay could mean the difference between life and death for immigrants and their families.

Gihon, the Jacksonville lawyer, has an Iraqi client who assisted U.S. and allied forces with intelligence in the second Gulf War. For that, he and his family have been targeted by ISIS. The man fled the country and arrived in America in 2014 to seek asylum for himself and his family. His request was not granted, though, and his case was referred to immigration court. He has been in removal proceedings for about 18 months.

The man had a hearing scheduled for this month, but an Orlando judge assigned to the case was temporarily reassigned to handle a docket at a Georgia detention center.

Meanwhile, the man's wife and three children remain overseas in hiding.

"He's distraught," Gihon said. "He's depressed. He prays every single day that they're okay, and he's powerless to help them."

• • •

Congressional attempts to address the backlog haven't gained traction.

A bill introduced last year by U.S. Rep. Marc Veasey, a Texas Democrat, would freeze funding for Customs and Border Protection and ICE until the funding for immigration courts is increased. The bill went nowhere.

It's unclear if the issue is on the radar of Florida's senators. The offices of Democrat Bill Nelson and Republican Marco Rubio didn't respond to requests for comment.

There is near universal agreement for at least one solution — more judges.

In his fiscal 2018 budget proposal, Trump called for the creation of 75 additional "immigration judge teams." And Attorney General Jeff Sessions announced 50 more immigration judges will be appointed this year, with another 75 next year.

That's not nearly enough, said Marks, the former president of the judges association. A wave of judges are about to retire, she said, and the administration should be working to double the number of judges.

Her association advocates for making immigration courts independent with their own budgets, like bankruptcy and tax courts. That way, judges have more discretion and control of their dockets and the budget, Marks said.

Trump's policies will increase the backlog in the short term, said Andrew Arthur, a former immigration judge and resident fellow at the Center for Immigration Studies, which advocates for lower immigration levels. But Arthur said the decline of border apprehensions is a sign that many would-be immigrants now know there's a higher chance of being deported.

"In the long run as those future border cases don't enter the system it's going to allow the courts to focus on cases where people can actually be granted relief," he said.

• • •

Gihon hopes that relief will come soon for his Thai client. He talks to her by phone every week, trying to keep up her spirits.

In the best case scenario, she'll get her scheduled hearing on Nov. 9 and the judge will grant her waiver request. If that happens, she could be out by Thanksgiving.

And if the judge denies the request?

"Then she and I need to have a long talk about appealing and how long she would be willing to sit in custody while the appeals process goes through."

That could take more than five months.

Contact Tony Marrero at [email protected] or (813) 226-3374. Follow @tmarrerotimes.

Immigration court backlog, by the numbers


Pending cases: 637, 846

Number of judges: 333

Immigration courts: 58

In Florida

Pending cases: 42,591

Number of judges: 35

Immigration courts: 3

Projected wait time for a pending case:

Miami: 689 days

Orlando: 631 days

Source: Department of Justice and the Transactional Records Access Clearinghouse

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