Immigration Limbo – Some Problems with Immigration Courts and Immigration Policy defines the word “limbo” as – a place or state of oblivion to which persons or things are regarded as being relegated when cast aside, forgotten, past, or out of date. I move to have l-i-m-b-o stricken from the English language and replaced by i-m-m-i-g-r-a-t-i-o-n c-o-u-r-t.

Notwithstanding personal, politicized opinions about Immigration in the United States today, I think we can all pretty much agree that our advanced legal system is premised on operating, at all times, and with respect to all persons, in a certain Constitutional manner. One very central premise is the right to a “speedy trial”, enshrined by the Sixth Amendment or (alternatively) the right to prompt and fair trial guaranteed by the Due Process clauses of the Fifth and Fourteenth Amendments. Besides, the U.S. Constitution, the Magna Carta is largely believed to have voiced this right, so to did the Virginia Declaration of Rights of 1776.

If the foregoing is true, and we all profess to take the Sixth and or Fifth Amendments seriously, then the question begs, what is going on in our Immigration Courts?!

Reports, on good authority, indicate an absurd degree of backlog where persons subject to removal/deportation wait, on average, some 612 days before a dispositive hearing on their respective cases! There are, at present, some 449,000 total pending cases! Now, if those numbers on their own don’t shock the conscience, it aught to also be considered that immigration detainees too have families, obligations, and (generally) lives but almost 32,000 of those 449,000 cases represent persons languishing in detention, held by Immigration Customs Enforcement (ICE). Yes, your math is correct – that means that the average immigration detainee spends almost 2 years in immigration detention awaiting hearing! The total number of pending and interminably back-logged immigration cases has gone up by about 50,000 each year since 2013. Granted, the time between “commencement” of a case and a final Immigration Court decision varies by state facility. Colorado appears to be the worse state for one to be subject to immigration proceedings in, with an average waiting period of 837 days (more than 2 years). Hawaii, by contrast, “boasts” an average waiting period of about 4 months. Pennsylvania is about half-way down the list, with an average wait time for hearing being slightly more than 1.5 years.

Now, to be fair, application of the Sixth Amendment to an Immigration Court context may be problematic. To my knowledge, there has been no case law suggesting that hearing on one’s immigration status (even deportation proceedings) can be, procedurally, classified as a criminal prosecution. Nevertheless, analogizing between the two in this regard (criminal law and immigration law) makes common sense. Subjection to either process involves the potential for one’s substantial deprivation of physical liberty, developing a “record”, etc. Thus, the underlying rationale for the Sixth Amendment “speedy trial” requirement appears to have same resonance in an immigration court context. Furthermore, subjection to the immigration removal process is quite often the result of earlier criminal processing.

What’s worse, is that there are a multitude of individual cases that blow that 2 year period, out of the water. See the case of one Michael Owino who was held in immigration detention for over 9 years awaiting disposition of his case:

The root causes for this glaring suspension of the Constitution are several: a perennial lack of funding, a severe shortage of judges, apathy, and lack of public awareness of this issue, to name a few. As of May this year, there were only 233 judges and only 58 Immigration Courts in the nation. Despite the Department of Homeland Security’s commitment to hire some 85 more judges by the end of this June, it is questionable whether those additions will make an immediate significant difference. Doubt is underlined by the fact that more than 100 immigration judges are slated for retirement throughout 2015. As a “national issue”, Immigration Law and the problems that plague its system of enforcement (especially detention), is often ignored or not understood by the media and/or general public. On this last point, the public can probably be forgiven, as immigration policy and law continues to be among the least transparent and most obscure areas out there. Additionally, in a post 9/11 world, immigration policy (for better or worse) and public willingness to tackle injustices therein, has generally become anathema. Unofficially, We the People have grown to have little problem assuming that immigration and terrorism are somehow inextricably linked and that, therefore, we should defer to whatever heavy-handed policy the federal government prescribes. The real statistics concerning immigration as a national security issue do not support this assumption. In 2009, an ICE report found that only 11% of detainees had committed any violent crime offense. The TRAC Immigration tool prepared by Syracuse University indicates that, at present, violent criminal offenders and national security threats comprise only slightly more than 5% of the total number of pending Immigration Court cases.

Before we delude ourselves into believing that this problem has no far reaching impact, beyond the lives of immigrant communities, let’s take a look at the expanding bill for the industrial-complex that has arisen to support the ever growing number of detainees. For fiscal year 2014, the White House requested $1.84 billion dollars to operate DHS custody of immigrants – A funding level that amounts to $159.00 spent each day last year, per detainee and well over $5 million dollars a day considering the total number of detainees nationwide. At present, DHS has budgeted for a daily detainee-bed capacity of 34,000 compared to a budgeted capacity of 18,000 back in 2004. What’s worse, private corporations have coopted much of the business of immigration detention, reaping huge benefits in the process. In fiscal year 2013, 244 state and county jails were contracted by the federal government to hold immigration detainees on behalf of ICE. In 2011, nearly half of all immigration detainees were held in privately owned facilities. The private corporations have also aggressively lobbied Congress to enact laws that a) make it easier for ICE to detain immigrants and b) extend the length of detention. The Associated Press has reported that, over the last decade, the three companies having the largest percentage of immigration detention contracts with the federal government, have spent more than $45 million in lobbying for such laws.

Although DHS/ICE have shown some commitment in recent times to re-calibrating their enforcement policies, to “go after” primarily those persons who present risks to national security or are violent felons (a shift emblemized by ICE’s Alternative to Detention Program), the chronic bloat to Immigration Courts has not been alleviated. And as has been discussed, administrative efficiency and cost aside, an appeal to Constitutionalism tends to prove that Immigration in the United States is a fundamentally broken system.

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2 thoughts on “Immigration Limbo – Some Problems with Immigration Courts and Immigration Policy

  1. In 2001, the Supreme Court curtailed the Immigration Service’s ability to hold deportees indefinitely in Zadvydas v. Davis.

    The other more egregious problem is that of the lack of speedy adjudication of illegal border crossers cases and cases of re-entry after deportation. Congress enacted the Immigration Reform and Immigrant Responsibility Act of 1996 which allowed the INS to use an administrative procedure known as Expedited Removal(ER). ER was enacted with the specific intent to relieve the backlog of Immigration Removal Cases where the Respondent gamed the systems with, changes of venue, motions and other delay tactics to delay the Respondents removal from the United States by clogging up the IJ’s and the BIA’s Docket.

    The Government allows and contributes to this backlog of Immigration Removal Cases by not allowing the application of enforcement aspects of IRIRA of 1996.


    1. Thanks for your comments, Joe. I would just point out that, ,regarding Zadvydas v. Davis, the prohibition against holding someone “indefinitely” is of little consolation to someone held for 9 years. In other words, “less than forever” seems to hardly be a guideline comporting with Due Process. In any event, Zdvydas was decided on narrower grounds: where a detainee is shown to be “factually undeportable” [Zdvydas did not have a country], the government may not THEN hold such person indefinitely – a writ of habeas corpus being the appropriate remedy. By contrast, the current backlog consists vastly of cases where NO disposition on removability has been reached and/or cases where the “factually undeportable” scenario simply does not present itself.


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