WASHINGTON — People who come to the United States every year seeking protection from persecution are struggling while their cases stall in the backlogged dockets of the nation’s immigration courts.
As a result of heightened immigration enforcement in the past several years, the courts have shifted their resources to deal with people in immigration detention facilities. Combined with a shortage in judges, that has meant longer wait times for all types of immigration cases to be resolved.
For asylum seekers, longer waits can mean spending months or years in detention. For those who are out of custody, the delays can leave them in a state of limbo, allowed to live in the country legally but not to work or access social services while they wait to plead their case in front of a judge.
‘Trouble back home to more trouble’
Sa’youh Tunji, 28, an asylee from the Cameroon who now lives in Maryland, spent more than five years waiting for his day in court.
“I went from trouble back home to more trouble,” he said.
Tunji fled Cameroon in 2003 after his father was killed – by government forces, Tunji believes. His father had been a political activist with the Southern Cameroons National Council, a pressure group that advocates for independence of English-speaking Southern Cameroon from the French-speaking majority. Tunji recalled police harassing the family, raiding their house and taking him into custody to question him about his father when he was a child. As a university student, he became an SCNC activist and was arrested twice for his own political activities. He described being beaten and tortured while in police custody.
After his father’s death, Tunji got word that the police were looking for him. He left the country, entering the United States on a visitor’s visa to stay with family friends. He found himself thrust into a process that resembled a Kafka novel.
His initial application at an asylum office in October 2003 was rejected and referred to the Baltimore immigration court. Over the next several years, he would receive letters, sometimes weeks before his scheduled hearing, sometimes a few days, informing him that the date had been postponed. In 2006 the judge closed his case and then reopened it – still without a hearing – because it had gone on too long.
In January 2009, he finally had his hearing, before a different judge, and the court granted his asylum petition. But in the intervening years, Tunji could not work legally. He had to largely rely on his wife – a U.S. citizen who he met after arriving in the country – to pay the bills for them and their infant daughter.
The situation took a toll on their marriage, and they are now separated, Tunji said.
In other respects, his situation has improved. Within months of gaining asylum status, he found work as an office coordinator, and he now studies information technology at Johns Hopkins University.
But Tunji said of his time in court, “I am still living with the consequences.”
Struggles during the wait
Asylum seekers may apply for work authorization 150 days after filing their asylum application, but the authorization “clock” can be stopped for a number of reasons – including any time the asylum seeker or their attorney ask for more time to prepare for a hearing. The waiting period is intended to discourage people from filing frivolous asylum applications. But immigration attorneys interviewed for this story said the current regulations around the clock are overly complex, and often courts stop the clock in error – which Tunji believes was the case for him.
When that happens, the clock does not restart until the next hearing date, which, because of the number of cases on each judge’s docket, may not be for a year or more.
In the meantime, asylum seekers with pending cases are not eligible for government-provided social services. Those who arrive without savings must rely on family, friends, religious organizations or private charity groups to get aid with needs like medical care and housing.
An asylee interviewed for this story, who asked that her name be withheld out of fear for the safety of her family at home, was pregnant while waiting for her hearing date. She found out she had been granted asylum two days before her son was born. But in the meantime, three hospital visits had left her with bills she couldn’t pay. She ended up in collections.
“It’s a very difficult circumstance we put people in who are escaping persecution,” said Karol Brown, an immigration attorney in Seattle.
A bill introduced by Sen. Patrick Leahy, D-Vt., in March, includes provisions that would limit the detention of asylum seekers and remove some of the legal barriers to petitions, such as the current one-year deadline to file an asylum application after arriving in the United States. The bill would not change the work authorization clock system, however.
Disorder in the courts
Asylum regulations mandate that cases should be resolved within 180 days, but many drag on longer.
A Department of Justice review of its own performance in the 2009 fiscal year shows the percentage of asylum cases completed within the mandated window was at a 10-year low in 2009, at 82 percent. That fell short of the department’s 90-percent target.
The justice department report cited an increase in detentions as the primary reason why asylum cases were not being completed on schedule, noting that detained cases had increased 70 percent in the past five years and comprised about half of the immigration courts’ caseload in 2009.
“[The Executive Office For Immigration Review] shifted immigration judge resources away from the non-detained dockets to meet the increasing demand of the detained caseload,” the report stated. “As a result, the priority shift to quickly completing detained cases severely impacted the courts’ ability to complete 90 percent of expedited asylum cases within 180 days.”
Dana Leigh Marks, president of the National Association of Immigration Judges, said judges are overburdened as hiring has not kept pace with people retiring. Last year, the average immigration judge had 1,200 cases pending, about three times the number of a federal district judge, she said. The case load makes it difficult to deal with complex and high-stakes asylum cases.
“We feel that we are doing death penalty cases in a traffic court setting,” she said.
EOIR spokeswoman Elaine Komis said the agency is in the midst of a major immigration judge hiring initiative. The agency is hiring 43 new judges, including 28 newly allocated positions, by the end of the current fiscal year and hopes to increase the roster of judges by 19 percent by the end of the 2011 fiscal year.
Karen Grisez, chair of the American Bar Association’s Commission on Immigration, attributed the increasing caseloads largely to efforts like the 287(g) program, under which local law enforcement agencies can enforce immigration law, and the Criminal Alien Program that targets illegal immigrants incarcerated on other criminal charges.
The trend of increasing caseloads may be slowing or reversing now. Immigration and Customs Enforcement statistics show the number of immigration detention beds funded by Congress and the number of people detained on immigration charges each year increased modestly in the 2009 fiscal year after a large upswing from 2005 to 2008. And, according to the Transactional Record Access Clearinghouse at Syracuse University, the number of new cases coming into the courts was down slightly in the first six months of 2010, compared with the previous year.
That may not mean an immediate change for asylum seekers stuck in the court backlogs. Despite the decreasing number of new cases, the TRAC report found that the number of pending cases in the immigration courts had reached an all-time high at the end of March 2010. The average case had been pending for 443 days.
Neither TRAC nor EOIR could provide statistics on how many of the pending cases were asylum cases.