U.S. Government Should Take Steps to Address Challenges Due to Border Surge

A piece by Julia Preston in yesterday’s New York Times examines the increase in Central American women with young children apprehended after crossing the southern border, and flags the related problem of delays in U.S. immigration court removal hearings.  The piece reports that Homeland Security Secretary Jeh Johnson has emphasized that migrants apprehended at the border are put into deportation proceedings, but also notes that “backlogs are huge in the immigration courts, with waits of over a year for a hearing.”

Addressing the multi-year delays should be a top priority for Congress and the administration, as urged by Human Rights First in its recent blueprint, and Senate appropriators should take action this week to pass a bill that fully funds the administration’s request for the immigration courts.  While immigration enforcement budgets increased by 300 percent between 2002 and 2013, funding for the immigration courts has lagged far behind, increasing only by 70 percent.  Over 366,000 immigration removal cases have now been pending for an average of 578 days, and many individuals must wait multiple years for their hearing dates.

The wait times are a real hardship for asylum seekers and immigrants, and can make it more difficult for them to secure pro bono counsel. The Times piece points out that some migrants, hearing rumors from friends or false promises from smugglers, wrongly believe they could receive a permit to stay in the United States for years. Instead, they face deportation proceedings and the battle to navigate our country’s complex immigration laws.  This misinformation makes the need for quality counsel and legal information more critical than ever, both to help identify individuals with protection needs and to enhance the efficiency of the system.

The article also states that officials “have no specific plan to monitor compliance.”  Yet U.S. immigration authorities have the tools to monitor compliance in cases where additional measures are determined to be necessary to assure appearance at subsequent removal hearings and deportation. While some view detention as the only way to ensure appearance, numerous studies have documented that case management, supervision, monitoring or alternative measures can lead to high appearance rates.

The most recent statistics from Intensive Supervision Appearance Program (ISAP) II, the program contracted by Immigration and Customs Enforcement for its alternatives to detention monitoring, report that people attended their final hearings 97.4 percent of the time and complied with final orders 85 percent of the time. The report of the Council on Foreign Relation’s Independent Task Force on U.S. Immigration Policy, co-chaired by former Florida Governor Jeb Bush and former Clinton White House chief of staff Thomas “Mack” McLarty,  notes that alternatives to detention can “ensure that the vast majority of those facing deportation comply with the law, and at much lower costs.” Not only are these measures much more cost-effective than detention, they are also more in line with American values and human rights commitments.

Congress and the administration should take the following steps:

• Increase immigration court staffing to address removal hearing delays and eliminate hearing backlog. For Fiscal Year 2015, Congress should appropriate at minimum, as the Senate bill currently reported out of committee does, the president’s requested $347.2 million (for a total of $351 million), which would add 35 full immigration judge teams to help alleviate some of the resource deficiencies facing the immigration courts and address critical gaps in access to legal information and counsel.  In subsequent fiscal years, the Administration should request, and Congress appropriate funds for, 75 new immigration judge teams per year for three fiscal years—the level called for in the Senate’s bipartisan comprehensive immigration reform bill.
• Launch a nationwide initiative with increased capacity to use cost-effective alternatives to detention for border arrivals who are released to other parts of the country and are determined to need appearance support. ICE should launch an initiative to more smartly use alternatives to detention for individuals apprehended in border areas who are determined to need additional supervision to mitigate flight risk. Congress should support this nationwide initiative. This initiative should provide case management, and, where necessary, supervision, monitoring and/or other measure to support appearance in the locations to which individuals relocate upon release. If additional supervision is needed for some families, DHS should build on models of community-based alternatives, such as the pilot projects already in place with Lutheran Immigration and Refugee Service or the U.S. Conference of Catholic Bishops.