An ongoing study of the Executive Office of Immigration Review courts revealed an alarming backlog of cases stuck in the courts with extremely long completion times.
“We’ve been following it since 2006 and we’ve been able to get accurate case by case data in every single court,” said Dr. Susan Long, of the Transactional Records Access Clearinghouse at Syracuse University.
Long said the backlog is likely at its highest point ever. The biggest reason for the backlog of cases is the shortage of judges to handle the increased workload under the Obama administration.
“They have to get up to speed,” Long said. “The staff [at EOIR courts] is very lean.”
Having the money to solve the problem is understandably, a big part of the solution. However, as Long explained, although Congress allocated monies for EOIR courts to hire more judges in 2006, they haven’t spent it.
“EOIR is very backward in managing the courts,” Long said. “They’re backward in the use of management techniques for running an agency. They’ve been operating without a lot of attention for some time.”
Buffalo immigration attorney Matthew Kolken of Kolken & Kolken, said more aliens have been deported in the Obama administration era than at any other period of time and if voluntary departures are included, the number of persons deported since Obama took office could be close to two million.
That figure could rise as more judges are hired and court efficiency improves.
TRAC figures (www.trac.syr) reveal the number of cases awaiting resolution before U.S. immigration courts reached a new all-time high of 267,752 in 2011. New York had the second highest number of cases in the U.S. at 42,992, trailing only California’s 65,055.
TRAC data revealed the pending cases for EOIR court in Buffalo and the detention center in Batavia total about 1,800. Cases are resolved in Buffalo in an average of 216 days, as opposed to a national average of 504 days, and 592 days in New York City.
Attorneys working in the Buffalo and Batavia courts found case delays, court schedules and efficiency to be far better than what TRAC determined nationwide.
“The delays aren’t necessarily a judge’s fault,” Kolken said. “It’s not always easy for a judge to push a case through the docket. I would say that judges in Buffalo and Batavia move their cases along as quickly as possible.”
Kolken said the judges are extremely knowledgeable about the law and take care to ensure those appearing in court have every opportunity to obtain counsel.
While Kolken said there are “nowhere near enough EOIR judges as are needed,” the western New York immigration judges who preside over the busiest point of entry between Canada and the U.S. are among the “best in the country.”
“There is no shortage of cases and the detention center is always full,” he said. But while there are delays they typically don’t prejudice either party.”
Kolken is currently involved in the high profile deportation case of his client, George S. Boley, in the Batavia court. Boley is accused of committing atrocities in Liberia’s civil wars.
Walter Ruehle, an immigration attorney with the Legal Aid Society of Rochester, also said delays at the Buffalo and Batavia courts were not as bad as other parts of the country.
“If you look at the TRAC report, it’s not as much of a problem here,” Ruehle said. “Things are moving much quicker than they used to. The courts [here] are pretty efficient and well run administratively.”
Ruehle said he believes the EOIR is making an effort to hire more judges since it recognizes the types of problems it creates for aliens. One issue he has found is the length of time it can take for an unrepresented alien to get a bond hearing in Batavia.
“For anyone in detention, a month or more is a long time,” he said. “It’s a problem for anyone with a meritorious case because witnesses disappear or die, a country’s conditions can change. … That sort of delay really does have an affect on a person’s due process rights.”
Rochester immigration attorney Tracy Powell of Brent & Powell agreed that delays for a client in custody can be a disaster but the recent addition of Judge Steven J. Connelly in Batavia should help move those cases along faster.
Powell said a continuance of approximately six to eight months in Buffalo is typical and often works to a client’s advantage from a defensive standpoint.
“I haven’t had a client inconvenienced by having a court hearing continued there,” she said.
While western New York immigration court case backlogs and delays don’t appear to be as much of a problem as in other U.S. courts, the use of FOIA to obtain necessary documents is.
“I use FOIA in every case I do and it takes a long time to get documents, possibly three to six months,” Ruehle said. “It presents a problem if you want deportation relief, in forming a defense or in trying to make a motion to reopen.”
Dr. Long noted that despite Obama administration promises for increased transparency, “the withholding of documents has gotten worse.”
“Justice delayed is justice denied,” Dr. Long said. “The law [FOIA] specifies deadlines but there are no sanctions, which is unfortunate because it is a very important law that provides the public a look at government and the due process of law.”