A record backlog, antiquated technology, and new quotas: Inside San Francisco’s chaotic immigration court
On the fourth floor of a federal building among the skyscrapers of downtown San Francisco, Judge Patrick O’Brien’s courtroom is in session, and it is surprisingly subdued for one of the busiest immigration courts in the nation.
“We don’t normally sit around waiting like this. You should’ve seen this courtroom yesterday. There were 60 people in here,” O’Brien says, gesturing to the six benches in the gallery, which fit 30 people comfortably.
Early in 2020, the immigration case backlog eclipsed 1 million, and the San Francisco court handles the second-largest load in the country, roughly 70,000 cases. The backlog quadrupled in the past decade, accelerating under President Donald Trump with a record 443,000 new cases in fiscal year 2019, in large part because of a surge in asylum filings. Court administrators, judges, and lawyers are stretched at every seam, and moments of calm are rare these days.
The immigration courts run like no other U.S. justice system, with judges afforded less autonomy, and fewer protections for those appearing before the court. Judges face new performance metrics, and the professionals who work in the courts, from federal attorneys to translators to immigrant-support networks, are feeling the strain.
O’Brien is waiting for all of the parties to show. The translator is here, the government’s attorney is present, and the immigrant from Guatemala, in navy blue prison garb, stares hopefully into a TV monitor from 300 miles away at the Mesa Verde Detention Facility in Bakersfield. The detainee’s lawyer is nowhere to be found and not answering phone calls. Eventually, O’Brien postpones the bond hearing, pushing back the detainee’s shot at release. An hour and a half after the scheduled time, the lawyer walks into the courthouse lobby, befuddled. He was sent a hearing notice with the wrong time, which he shows the clerk. No one can explain the mixup.
It is precious time wasted, but it’s not uncommon amid the bureaucratic morass plaguing the courts as they scramble to manage the withering case load. During the week of Feb. 10, Fortune observed several sessions of San Francisco’s immigration court to chronicle day-to-day life under the record backlog.
Judge Elizabeth Young kicks off her morning session in a non-detainee courtroom with a disclaimer. Her calendar is booked for months, and most of the people appearing today will not come back again until September.
The whole docket for the morning is family unit (FAMU) cases, and the administration has mandated completion in one year. The immigration courts are not part of the independent judiciary but rather operate under the Department of Justice and its Executive Office of Immigration Review (EOIR).
“I don’t know why they keep giving me cases,” Young says with a sigh to no one in particular as the hearing starts. She handles many of the San Francisco court’s juvenile and family unit cases, which are filling up the docket, and she spends more time solving her calendar jigsaw puzzle than the other judges.
In San Francisco, an immigration case takes an average of 717 days, making a one-year deadline a sprint to the finish. People with low-priority cases will not see the judge again until 2022. In the most bogged-down courts like Seattle, Boston, and Newark, the average is more than 900 days, according to the Transactional Records Access Clearinghouse.
“The judges are overworked, and it keeps getting worse as the backlog exceeds 1 million,” immigration attorney Jennifer Burk says. “The quota is clearly weighing on judges, as they’re required to process a certain number of cases or face disciplinary action.”
There are children everywhere—sucking on lollipops, playing with toy cars, and clutching Batman backpacks. A 1-year-old girl in pigtails appears before the judge asleep, cradled in her father’s arms. Many of the families are waiting for their “reasonable fear interview,” a review of the circumstances they are fleeing in their home country. A positive result offers protection from deportation, but no one appearing today has been scheduled.
“The family unit dockets are really troublesome,” says San Francisco immigration judge Dana Leigh Marks, who has been on the bench for 33 years and spoke in her role as president emeritus of the National Association of Immigration Judges.
“A year is not a lot of time, not when you have people trying to find lawyers, especially low-fee or pro bono attorneys,” she says. “At the same time we are seeing many more families applying for asylum, and the cases are at the cutting edge of asylum law.”
The DOJ has mandated that judges complete 700 decisions annually, but resources for adjudication have not kept pace with allocations for enforcement. From 2003 to 2018, the combined budget for the U.S. Immigration and Customs Enforcement and Customs and Border Protection offices increased 160% to more than $24 billion, while EOIR’s budget has risen 120% to $437 million.
“They are micromanaging judges in terms of the time frame to get things done,” Marks says. “We’ve never been subjected to numeric or time-based appraisals in the past. It pits the judge’s interests against the people appearing before them.”
EOIR is adding staff, including interpreters, judges, and clerks, new centers for video hearings, and an electronic system to manage the mountains of paper files, EOIR assistant press secretary Kathryn Mattingly says in an email. Case completions have grown three years in a row, with more than 275,000 cases decided in fiscal year 2019, the second-highest total ever and 80,000 more than in 2018.
“EOIR’s caseloads are tied directly to Department of Homeland Security enforcement and detention activities,” Mattingly says. “While EOIR is doing an unprecedented job adjudicating cases fairly and expeditiously, the nearly 1 million case backlog will continue to grow unless Congress acts to address the crisis at the border.”
Meanwhile, double the number of immigration judges resigned or retired in 2019 than in 2017 or 2018. The lack of experience on the bench means more time spent on motions and procedures, as the robed rookies find their footing.
“The turnover in the last two years has been incredible. There are judges now that do not know immigration law,” says Marie Vincent, an attorney and codirector at Pangea Legal Services.
The situation has boiled over into a feud between the judge’s union, which seeks independence, and the Justice Department, which is attempting to decertify the union and wrest more control of the courts. A decision is expected in May.
‘No due process’
In Judge Kelly Lake’s courtroom, she has no choice but to go into assembly-line mode. She has a mixed docket of juveniles and adults in for preliminary hearings, and nearly all of them are still searching for a lawyer, which right that is not guaranteed in immigration court.
She gathers 15 Spanish speakers together, gives instructions to the group through a court interpreter, then addresses each one individually for a few minutes. They all get a white sheet of paper, a list of a dozen low-cost and pro bono attorneys organizations, mostly in the Bay Area.
“We’re looking,” Cristian, Jose, and Jonathan Gaitan, three brothers all under 18 who live 200 miles away in Fresno, tell the judge. Some law students temporarily worked on their asylum case but are no longer available, Cristian says. “No one returns our calls.”
Lake eventually calls a father and son from Guatemala who speak the indigenous language, Mam. The courts are struggling to find services for the growing range of languages encountered. She tries two different dial-in translation services, but no one is available. They are handed the same list and told to return in May with a lawyer.
“The low-cost and pro bono legal services are stretched too thin, and most service providers, including Pangea, are already getting more calls than we can handle,” Vincent says. “It’s extremely difficult for an immigrant to find a lawyer from the list the court hands out.”
A little more than a third of all immigrants and 14% of detainees have a lawyer by their side in court, according to a 2016 American Immigration Council study, and they are as much as five times more likely to win their case with a lawyer than without.
“Immigration law is incredibly complex, to the point that even judges and government attorneys often do not fully understand it,” Vincent says. “It takes years to grasp, and to make someone go through immigration court proceedings without a legal representative is totally unfair. There is no due process.”
As Judge Young wraps up the FAMU hearings, the competing realities of a gridlocked system hitting the accelerator are evident. Thirteen respondents, roughly half of the morning docket, fail to show. Their notices to appear, filed by the Department of Homeland Security (DHS), were recently changed to a much earlier date with little time to arrive by mail. Young decides to reschedule the baker’s dozen of cases, carving out new dates in her crowded schedule.
Court schedules are not publicly accessible online, and immigrants must call a hotline to get updates. If the judge or DHS attorney fails to show, the hearing is rescheduled. If the immigrant does not appear, however, he or she can be ordered deported immediately.
“There is constant rescheduling and reshuffling and far less consistency than before,” Burk says. “When a court hearing is set, you really don’t know if it’s real or not anymore. It’s a huge burden on the immigrant because they have to come no matter what or risk a removal order, and some are coming from far away. “
In 2019, there were 10,573 removal orders due to a failure to appear, more than double the number from 2016. Several attorneys complained of DHS handing out notices with “dummy dates.”
“DHS agencies have been writing dates, but they are not real court dates,” immigration attorney Lizzie Davis says. “They are never actually scheduled. So when the immigrant calls the hotline, no court date is scheduled. Some people don’t have the knowledge or information to keep checking the hotline to make sure they go on their real assigned date. Often it’s an honest misunderstanding and the person is ordered removed.”
Back in Judge Lake’s courtroom, the monotony is broken by a man with a thick mustache who approaches with a stack of papers the size of a phone book when the name “Janet Gomez” is called. His ex-wife received a notice to appear, but she moved back to Mexico with her children in 2016, he explains. He produces rental and school records, but the judge tells him she cannot accept documents in Spanish without mentioning they would be admissible with a certified translation.
At the request of the government attorney, Lake issues a removal order. Although she already returned to Mexico, Gomez will have a deportation on her record, at a minimum complicating future visits to the United States and, at worst, resulting in a 10-year ban.
Trapped in the court’s overtaxed machinery, more immigrants, particularly those in detention, who can be held for 180 days before a bond hearing, are opting for voluntary departure, withdrawing their case and returning to their country of origin. Voluntary departures have roughly tripled since Trump took office, according to TRAC, to nearly 28,000 in 2019.
“Immigration court is very intimidating and scary for most respondents, even if you are represented by an attorney,” Vincent says. “For unrepresented people, it is very common to be bullied by judges and government attorneys into not exercising your rights.”
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