There's a backlog of 1.3 million asylum cases and migrants keep coming. "We are holding death penalty cases in a traffic court setting," said one judge.
Published: 2021-06-13 06:45 am
Immigration judges decide who gets into the U.S. They say they're overworked and under political pressure.
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With a historic increase in the number of migrants trying to cross the U.S. border, immigration judges on the front lines told NBC News the system is reaching a breaking point.

"In essence, we are holding death penalty cases in a traffic court setting," Judge Dana Leigh Marks said, adding that many judges battle burnout daily.

Nationwide, there are about 500 immigration judges. They preside over asylum cases, meaning they decide who gets to stay in the U.S. and who must be deported. When President Joe Biden took office, there was already a backlog of 1.3 million cases, and the monthly crossing totals keep rising.

Among the judges' concerns, as described to NBC News: There aren't enough of them; they need more support staff; and they say they've felt political pressure from their bosses at the Justice Department. During the Trump administration, that meant pressure to enter orders of removal, even as many asylum seekers assert they risk death if they return to their home countries.

Judges in federal trial courts are effectively appointed for life, which can insulate them from pressure. Immigration judges, however, are Justice Department employees who are appointed by and answer to the Attorney General, a political appointee.

The immigration judges are represented by a union, but now that union is in danger of ceasing to exist because of an action initiated under Trump.

Migrants who are applying for asylum in the U.S. go through a processing area at a new tent courtroom at the Migration Protection Protocols Immigration Hearing Facility on Sept. 17, 2019, in Laredo, Texas.Eric Gay / AP file

"We are in the legal fight for our life to ensure that our decisional independence is valued and maintained," said Judge Amiena Khan, "[and] that we as judges are able to do our jobs."

Khan is the president of the judges' union, the National Association of Immigration Judges. The NAIJ has been the judges' collective bargaining representative since 1979, but Trump's second attorney general, William Barr, petitioned to decertify the union. Eventually, the Federal Labor Relations Authority (FLRA) overturned decades of prior precedent by ruling that immigration judges are management officials who may not be part of any collective bargaining unit.

The union is contesting the ruling. The next step is for the FLRA to rule on the union's motion for reconsideration.

This month, dozens of Democrats in Congress signed a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco urging them to rescind Barr's petition.

In testimony before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies last week, Garland was asked about the creation of an independent immigration court — separate from the Justice Department. While he said that "immigration judges should be left alone to do their work," he said he hadn't thought much about the issue of whether to structure the system differently — and that it should be a question for Congress.

A DOJ spokesperson told NBC News that the attorney general has not taken a position on whether immigration judges should be allowed to unionize.

The Biden administration has called for hiring 100 new immigration judges as part of its budget.

But with their union in jeopardy, four judges — Marks, Khan, and two retired judges — told NBC News they're fighting for their judicial independence.

"We should not be used as a tool of law enforcement," said Marks, who works in San Francisco. "That is not how Congress envisioned the immigration courts should play a role in the immigration system."

She said quotas were imposed to quickly clear cases, which threatens due process.

"If I have to move a case quickly through the docket, then that person doesn't have time to find an attorney to represent them," she said, because migrants are not given a court-appointed lawyer.

And not having a lawyer, experts say, often means a migrant loses their asylum case.

Judge Charles Honeyman worked in immigration courts in New York and Philadelphia until he retired last year during the Trump administration.

"I probably retired a few years earlier than I would have," he said. "Inefficiencies driven by political optics cause unnecessarily bloated dockets."

Retired Judge Lisa Dornell worked in Baltimore but also left the bench during the Trump administration, much earlier than she had expected.

"It was really heartbreaking to see the impediments that didn't allow us to help all of the children the way we wanted to," Dornell said.

Meanwhile, the workload is only rising. In May alone, according to U.S. Customs and Border Protection, agents encountered more than 180,000 migrants at the southern U.S. border. It was the largest monthly total in two decades.

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