Immigration judges make life-altering decisions in overbooked courts

The surge of Central American migrants has swelled the immigration court system, pressuring judges and defendants alike

The nation’s immigration courts got a bit of relief at the beginning of June, when the Department of Justice hired 18 new immigration judges. But the courts are still facing a major backlog.
Illustration by Sam Ward for Al Jazeera America

NEW YORK — Two lawyers huddle at the low, wooden courtroom railing that divides the action — the judge and counsel — from the waiting: four rows of short, wooden benches, filled this Monday morning with two families sitting at nervous attention. “I have her at 8:30,” says one lawyer, barely above a whisper, referring to Judge Mary Cheng, who’s missing from the raised platform at the front of the room. The clock on the wall shows 8:35 a.m. “I have her at 9,” the other says, a bit confused. Five more minutes pass. “Usually this judge is very prompt,” the first lawyer says. While they wait, they talk about how hard it is to find a good Roma interpreter; the first case up is an asylum claim from a couple who speak the language.

At a little before 9, the judge enters from a door at the front-left corner of the room and takes her place below the bronze Department of Justice insignia, a computer screen to her right and blue folders bulging with case files to her left. She apologizes for being late; a new immigration judge started this morning, and staff had gotten together to welcome her. Soon the public is asked to clear the courtroom — an option when asylum cases are being heard. Another week in New York City’s immigration court is underway.

Depending on how you count it, this courthouse — actually a collection of 31 small courtrooms scattered across two floors of a tall federal office building in downtown Manhattan — is either the busiest or second busiest of the 58 immigration courts in the country. The one in Los Angeles got more new cases last year — a little over 18,000, compared with around 17,700 for Manhattan. But Manhattan has more cases pending: 60,538 compared with 51,878 in L.A. Or, on average, about 2,240 cases per New York judge. Judges in comparable courts have about 700 cases a year, according to the American Bar Association.

“Death-penalty cases in a traffic-court setting” is how Dana Leigh Marks likes to put it. She’s an immigration judge in San Francisco and president of the National Association of Immigration Judges (and, as such, one of two immigration judges in the country who are permitted to speak to the media). “The volume alone is like traffic court, and yet the stakes for someone who asserts a claim of asylum, if I am wrong — or even if I’m right but, because the law doesn’t allow me to grant relief, I have to deny them — they could be going back and facing death.”

The nation’s immigration courts got a bit of help at the beginning of June, when the Department of Justice hired 18 new immigration judges, including the one Cheng had welcomed this morning. The government has approved funding for 85 new judges in the next year. That would bring the total to just under 320. A recent report by Human Rights First estimates that the immigration-court system would need close to 500 judges to handle incoming cases and begin reducing the backlog of pending cases, which currently stands at about 450,000 nationally. The same report says the average wait for a hearing in the courts is 599 days.

Judge Virna Wright has 48 cases to get through in her Wednesday afternoon schedule.

A good way to get a sense for what these numbers mean is to stop by the printed court calendars that are hung each day in a fluorescent-lit hallway on the Manhattan court’s lower floor. They stretch down about 20 feet of a wall outside of a waiting room, with cases listed by courtroom. The main calendar on a typical day in this first week of June lists 234 cases conducted in 20 languages and involving people from 37 countries. The biggest share are conducted through Spanish or Mandarin interpreters, but today’s calendar also shows Nepali, Urdu, Fula and Quechua, among others.

Judge Virna Wright has 48 cases to get through in her Wednesday afternoon schedule. They were supposed to start at 1 p.m., but a green Post-it note outside her courtroom explains, in Spanish, that the start time has been moved back to 1:30. About 20 people cram onto the courtroom’s five small benches, with another 16 or 17 milling around outside the room, speaking in Spanish in hushed tones. A young boy plays peekaboo over the back of one of the benches.

Wright is impatient with a lawyer in the first case, who is explaining that his client isn’t there today because his office gave her the wrong date. The lawyer apologizes profusely and they reschedule. Blanca Santos and her son Oscar are up next. Wright greets them and, through an interpreter, checks their names, ages and address. She then turns to Santos’ lawyer and runs through a few specifics. They’re from El Salvador, were served an order of deportation last summer, admit that they don’t have legal status in the country and are applying for asylum. The judge sets a date for a second hearing next January. Today’s hearing lasts five minutes.

Wright begins to click through cases with similar efficiency — confirming identities, taking pleas, seeing what sort of relief those who come before her are seeking. But she runs proceedings with some warmth, too. She makes sure to make eye contact and smile at each of the people appearing before her. Sometimes she jokes a bit with one of the children. These preliminary hearings are about getting facts straightened out and getting a main hearing scheduled.

While many defendants in immigration cases are represented by an attorney, there’s no legal right to one as in a criminal case.

There’s a special time crunch with the cases like those Wright is seeing this afternoon — so-called “surge dockets.” These consist of cases the Obama administration prioritized last summer as people started fleeing violence in Honduras, Guatemala and El Salvador. To expedite cases of recently arrived Central Americans, the administration bumped nonpriority cases back until the fall of 2019. As more judges start their jobs, those cases will, in theory, be rescheduled again to a date in the slightly nearer future.

Wright has run through seven of the priority cases on the afternoon’s calendar, plus two no-shows, by 2:30. Out in the hall a young man coaxes his toddler: “Say, ‘I love you.’ ”

“I love you,” the child says.

“Say, ‘I love you, Mommy.’ ”

“I love you, Mommy.”

A different game is afoot in a waiting room down the hallway. Two young sisters have moved from singing “Itsy Bitsy Spider” to giggling over a game of I Spy. The older one has spied something black. This shirt? That coat? My shoes? No, no and no. After more guesses the older sister gives up. “Guess what: It’s Dad’s eyebrows! Your eyebrows are black, mine are, mom’s are, dad’s are really black.” Their parents both laugh, welcoming the distraction.

Their lawyer shuttles between them and the courtroom a couple times. After listening to her parents consult with their lawyer, the younger daughter starts to cry. Finally the four of them follow their lawyer into the courtroom, about an hour behind schedule. The mother, Chanji Lin, was caught without immigration papers in New York City. She’s asking the government to cancel her deportation because of the hardship her children will face if their mother is deported.

Judge Philip Morace, a middle-aged man with gray, close-cropped hair, confirms Lin’s address and that she’ll be speaking Mandarin through an interpreter. “And your attorney has explained that the government is offering prosecutorial discretion?” In other words, the case won’t be actively pursued, but will remain pending. “Pending how long?” Lin asks, her voice quiet and anxious. Morace lists some circumstances that might trigger the reactivation of a case; a run-in with police is the most likely. “But you get to remain here. The government isn’t trying to push you out. Your daughters are here. They get further assimilated into the school system, and your case gets stronger,” he says, encouraging her to accept the government’s offer. “If the decision had to be made right now, you might get to stay; you might not.”

Lin asks the judge for a moment to talk to the children’s father. They whisper for a minute, their hands lightly touching across the railing. Then she tells Morace, “We talked and we decided we would go forward today.” She explains that they wouldn’t feel at ease with the case still open.

The case is complicated. The father is living in Florida with his sick mother. Lin and the children have been back in New York City for a year, but there is information missing from their tax documents. The parents aren’t legally married, although their attorney says they had a traditional wedding according to Chinese custom. Morace has a main concern. “I think there’s some forum shopping going on here,” he says. Manhattan’s court is generally more lenient than those in Florida, and the judge thinks the mother and children moved here to get a more sympathetic hearing. In the end, he adjourns the case until February to see if Lin can establish herself more convincingly in New York. “I do feel like someone’s choreographing this thing,” the judge says, a bit miffed. “I can see how that would stick in the craw a bit, Judge,” Lin’s lawyer says.

While many defendants in immigration cases are, like Lin, represented by an attorney, there’s no legal right to one as in a criminal case. Legal representation is particularly uncommon among the recent surge cases, with only about a quarter of them getting legal help. The difference is stark: Fewer than 2 percent of surge defendants without lawyers avoid deportation, compared with more than 25 percent for defendants with lawyers.

They’re shown the four-page list of groups that offer pro bono assistance in New York immigration courts. After a pause, Lopez’s friend asks, “What does ‘pro bono’ mean?”

Most of the week’s 1,018 cases in Manhattan have been heard by the time Judge Frank Loprest Jr. calls the final one on his morning’s calendar. “Mr. Lopez, this is the third or fourth time you’ve come to see me without a lawyer. Have you made efforts to find one?” the judge asks, gentle in his admonition. Lopez, a wiry, soft-spoken man wearing a pressed green shirt and a crisp part in his hair, says he has consulted several, but hasn’t found one yet. “I want to give you the chance to apply for an immigration benefit. That’s why I think you should have a lawyer,” the judge says.

Since there’s not an attorney present, the judge just runs through a few of the preliminaries. Lopez admits to sneaking into the country from Mexico. “But I’d like to stay if you can tell me what to do,” he says. “I’m more like a referee,” says the judge, explaining that Lopez can find information about pro bono lawyers, including their contact information, in packets at the end of the hall. “See you back here in June. Thanks again, Mr. Lopez.”

Lopez thanks the judge, and he and a friend walk out into a quiet hall as the court winds down for the week. The door to the pro bono lawyer’s office is closed; it’s unclear if there’s a consultation going on or if the office is empty. They eye the wall of information packets the judge told them about and timidly ask a passerby what the forms are about. They’re shown the four-page list of groups that offer pro bono assistance in New York immigration courts. After a pause, Lopez’s friend asks, “What does ‘pro bono’ mean?”

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