Publication / DecodeDC
February 22, 2017
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Not all cases could be fast-tracked

WASHINGTON, D.C. — New Department of Homeland Security guidelines aim to speed up deportation of illegal immigrants by expanding the “expedited removal” program, but the expansion actually could add thousands of cases to the existing years-long backlog in immigration courts.

A pair of memos released by the DHS Tuesday had a dual mission: They sought to allay fears that Immigration and Customs Enforcement agents and other law enforcement officials would conduct mass deportations of illegal immigrants, while offering more specifics about how President Trump’s executive order regarding the U.S.-Mexico border would be implemented.

The documents touched on a variety of ways to strengthen policing the border and locate illegal immigrants anywhere in the country, including hiring 10,000 additional ICE officers, 5,000 new Border Patrol agents, enlisting local law enforcement officers to enforce rules, stopping “catch and release” practices and expanding agents’ powers of expedited removal.

Currently the countrywide U.S. immigration court system — which handles most immigrant deportation proceedings — maintains a backlog of more than 542,411 cases and the average wait time for a hearing is almost two years, according to January 2017 data from TRAC, a Syracuse University program that FOIAs the government’s internal databases.

Trump’s executive order announced last month calls for hiring additional immigration court judges, but the DHS did not disclose in its memos this week how many would be hired or how the positions would be funded.

The “expedited removal” program was established in 1996 by Congress. However, the Obama administration chose to use it narrowly, only deporting right-away illegal immigrants who were arrested within 100 miles of the U.S border and had been in the country 14 days or less. The new memo signed by DHS Secretary John Kelly aims to expand the definition of “expedited removal” to its full extent allowed by the 1996 law — which would mean ICE agents could capture illegal immigrants who have lived in the United States for up to two years anywhere in the country.

While on its surface expanding expedited removal sounds like it may lessen the burden on the immigration courts, there’s a good chance it would not work out that way largely because many of the illegal immigrants could have legal issues that would require a hearing anyway. Additionally, the new memo would likely not affect the thousands of cases currently slated for a hearing before an immigration judge.

“We currently have a backlog or a docket of cases that numbers 540,000 cases, so even working as hard as we can, since there’s roughly 300 immigration judges across the country, one estimate is that even if we took on no new cases it would take at least 2.5 to three years to be able to take on those cases,” said Judge Dana Lee Marks, president of the National Association of Immigration Judges.

Marks said that judges and other immigration court personnel in the field are waiting for clarity on both Trump’s executive order and the DHS memo because they are “purely aspirational.” There are many things DHS has to do before it can achieve expedited removal expansion. Marks says first money needs to be shifted around by DHS to cover the cost of hiring more judges, second DHS must circumvent the current hiring freeze put into effect by a previous White House executive order

, and lastly, because the expansion of expedited removal requires a change in the governing regulations, it has to undergo a lengthy notice and comment period, which is published to the Federal Register.

“It’s not going to happen overnight,” said Marks.

Marks says DHS’s promise to speed up the current immigration court deportation hearings will be hard to achieve. While rounding up illegal immigrants might be quickly doable through increased border agent numbers, due process laws are harder to curtail—that’s where the court backlog could be intensified.

“People have a due process right, so if they say, ‘My family is in talks with lawyers and I need a continuance,’ that’s not unreasonable. A judge is going to need to grant that. If a lawyer comes in and says, ‘I’ve just been detained and this is a complicated case, I need a month to get documents from the foreign country,’ that would not unnecessarily be unreasonable,” Marks said.

There also are other hurdles. Immigration judges aren’t the only resources needed to expand the deportation court. They would need more courtrooms, more detention facilities, more interpreters and more recording equipment.

“It’s just bound to increase because there simply are some kinds of cases that have to go through immigration court under current law, said Susan Long, co-director of TRAC. “More responsibilities are being placed on them.”

Part of the DHS memo calls for illegal immigrants currently serving time in U.S. prisons or jails to be deported before they finish their sentences. To do so, the detainees would have to be given an “institutional hearing.” Long says, an increase in those number of hearings would undoubtedly add to the current backlog on the immigration courts.

“The devils in the details,” she said.