ICE policy change means more arrests of non-criminal undocumented immigrants
At immigration court on the 5th floor of a downtown office building, Judge Glen R. Baker spent a Tuesday morning setting court dates for 40 immigrants before him facing possible deportation.
For those making a first appearance, he encouraged they seek a lawyer and return in five or six months.
That’s just for starters. Once represented, many can expect delays lasting years.
“Can we schedule this for April 6, 2022, at 10:30 a.m.?” he asked lawyer Catalina Velarde, there on behalf of an undocumented Kansan named Jose Chavez-Larin seeking asylum from El Salvador.
“That will work,” Velarde said.
As is the issue with immigration cases around the country, Velarde accepted the far-off trial date not knowing where her clients might be living then, where her own career may lead, or if laws could change to benefit or further harm people living illegally in the United States.
All the result of a deepening backlog in cases stressing the nation’s immigration courts.
President Donald Trump’s administration has taken steps to whittle down the backlog, now numbering more than 760,000 unresolved cases. Since he took office, the Executive Office for Immigration Review has added 46 immigration judges nationwide, a 30 percent increase.
Yet arrests by Immigration and Customs Enforcement (ICE) are climbing even faster, about 40 percent higher than in 2016, further expanding the judicial caseload.
For now the backlog is seen mostly as a boon to those trying to avoid deportation. And for that reason, they’re reluctant to talk with news media about delays in their cases.
After all, a Kansas City hearing set for 2022 — and delays can be even longer in other U.S. jurisdictions — gives the undocumented time to gain income, marry a U.S. citizen, establish themselves in a community and build a case that a forced return to a native country would damage their families.
“I don’t control trial dates,” said attorney Velarde, adding that it’s possible future years could offer a better scenario for the undocumented. “Right now the law is not favorable.”
But long waits between hearings present “positives and negatives” for the clients of local immigration lawyer Matthew Hoppock.
Minor children who may face irreparable hardship if a parent is deported can become adults by trial time, weakening the illegal immigrant parent’s case for staying.
The death of a frail parent dependent on the care of a person fighting deportation does the same.
For migrants ordered to wear electronic ankle monitors that track their whereabouts, “waiting one year or waiting six years makes a difference,” Hoppock added. “It’s really stigmatizing. Every day you go to work, you go to church, people can see that (monitor) around your ankle.”
Depending on the circumstances of each case, Hoppock said many defendants are wise to request an expedited hearing, which judges must try to schedule within about six months when asked.
Yet that could mean being deported years sooner than later.
As of late September, an average of 718 days marked the time between the U.S. Department of Homeland Security initiating removal proceedings and when a case was closed, according to a Syracuse University nonprofit tracking the backlog.
By now the average delay may be even longer, and longer yet next year, said Syracuse’s Sue Long, a professor of managerial studies. “The backlog keeps going up and up and up.”
And it varies by region. In the Kansas City region served by the federal immigration court on Grand Boulevard, cases are taking an average of 580 days to be closed. In Colorado, 1,045 days.
The Department of Justice has set a goal of slashing the backlog in half by 2020, by continuing to hire judges and requiring that each close 700 cases a year. Judge Baker in Kansas City said he was confident that he and the two other local judges can meet that quota.
Others denounce the quota, which took effect in October. The policy “will force judges to choose between guaranteeing justice or losing their jobs,” said Anastasia Tonello, president of the American Immigration Lawyers Association. “With a clock constantly ticking over their heads, judges cannot possibly issue well-reasoned decisions.”
But something has to change, said Andrew Arthur of the Center for Immigration Studies, which supports a speedier process for arresting and removing undocumented migrants.
“When you allow these court continuances to fester, that just encourages more people to come to the U.S.,” he said.
In late November, longtime Lawrence chemist Syed Jamal learned his trial date to seek asylum: April 27, 2022.
He said he had “mixed feelings” about it. The wait leaves up in the air the future legal status of Jamal, a native Bangladeshi whose fight to avoid deportation earlier this year gained global attention after his arrest while taking a daughter to school.
On the other hand, the delay gives him and his attorneys “more time to prepare for the best,” he said.
But anything can happen in that time, as local immigration attorneys will attest.
Clients vanish. Lawyers move away or, feeling overwhelmed by their caseloads, close their businesses.
And by 2022, Trump may or may not be president.
“Hey, I’m thinking retirement,” said Kansas City attorney Angela Ferguson. “I don’t want to be committed to trials five years from now.”