Facilities along the U.S. southern border are overwhelmed with the unprecedented numbers of unaccompanied children crossing over from Mexico and Central America. Since October, roughly 47,000 unaccompanied children have been caught on the border, a more than 90% increase from last year, federal officials said. In total, roughly 90,000 minors may be apprehended this year and another 142,000 next year.
While this appears to be rather sudden, it apparently has been an ongoing problem. As said on NPR by Dana Leigh Marks, an immigration judge based in San Francisco and president of the National Association of Immigration Judges, there has been a steady upward creep of cases within the past decade, and since 2006, a 117% increase in pending cases for judges. The roughly 230 immigration judges have a combined total of 360,000 cases on their docket. And on average, there is a delay of 578 days for a court date, when immigrants are not detained.
The “why” question has garnered answers such as the DREAM Act giving false hope and rumors spread by gangs attempting to take advantage of these vulnerable underage migrants. And the answer to “what can we do” is equally elusive. The idea of simply sending the children back, expressed by many, from Hillary Clinton to the infamous Sheriff Joe Arpaio, is only a short-term, immediate solution. Realistically, this problem requires a big-picture, long-term solution. One possible solution of these emerges in the form of changing the nature and structure of immigration courts.
Many lawyers, scholars and judges, including the National Association of Immigration Judges, advocate for scrapping the existing system and developing a new, more independent court system under Article I of the Constitution. With this change, immigration courts would be removed from the Department of Justice and set up as independent courts, still within the executive branch. The highest judges would be appointed by the president and approved by the Senate. The courts’ decisions would still be appealed to the federal appeals courts.
Ostensibly, this change would allow for a larger allocation of funds from Congress, providing more resources to judges and greater credibility to the system. This change would also result in shorter terms of detentions of immigrants and fewer costly appeals to federal circuit courts.
Marks states, “We feel that the stream of resources to the courts have been impeded by the fact that we are housed in a law enforcement agency. And admittedly that’s a technical legal argument that doesn’t capture America’s attention, but we feel it’s a long-term structural reform that actually needs to be implemented in order to avoid crises such as these.”
Marks statements ring true, as the arcane nature of this legal argument has likely left it out of the mainstream dialogue. Even with immigration reform capturing national attention, there are very few mentions of this proposal as a possible remedy for our broken immigration system.
Right now, immigration courts are part of the Department of Justice, not the federal judiciary, and the judges are employees of the attorney general. These courts are underfunded and overburdened; judges say that under the Justice Department, these backlogged immigration courts don’t have the freedom to control their own budgets, issue timely decisions, or prevent unfair treatment of judges.
This month, the Washington Post ran a front-page article describing the sad state of these courts. The article featured a sneak peak at the life of an immigration judge, who handles a whopping 26 cases before lunchtime. These judges have seven minutes to decide the fate of each migrant, and deportation often includes separation from their families and returning to a country where their life is in danger.
Sadly, the likelihood of this kind of structural change happening in the near future is quite slim, mostly due to the ineptitude of our current Congress. “I think [this change] is very unlikely,” said Kent Barnett, assistant professor at the University of Georgia School of Law. “I don’t know that we’re going to get something that would be a relatively major administrative change through this kind of gridlock in Congress.”