Charlotte immigration court backlog among worst in US. Is there political will to fix it?

Charlotte attorney Benjamin Snyder spent a decade representing undocumented immigrants who faced deportation.

He’s stopped taking those cases.

One reason: the wait. It might take seven years for a client to know whether they will be granted asylum and get to stay in the United States.

New data from Syracuse University shows Charlotte’s immigration court is the eighth-most backlogged in the United States. As of November 119,025 cases were pending here. A Dec. 18 report released by the university says that, nationally, the backlog grew from 2 million pending cases to 3 million in just a year.

The report comes as U.S. Border Patrol says a surge in crossings is overwhelming its resources, and as there is a global refugee crisis.

Political interference, a lack of resources and an overly punitive system have all contributed to the backlog, experts and lawyers say.

And it’s not clear that lawmakers want to clear the backlog — or that they even see it as a problem.

Report: Judges ‘swamped’

Immigration judges now average 4,500 pending cases each, according to the Syracuse University report. They are “swamped,” it says.

“If every person with a pending immigration case were gathered together, it would be larger than the population of Chicago, the third largest city in the United States,” it says. “Indeed, the number of waiting immigrants in the Court’s backlog is now larger than the population found in many states.”

Previous administrations, going back at least to former President George W. Bush, have failed to tackle the problem. And the backlog’s growth accelerated during the Trump years, the report says.

While there was an acceleration in hiring judges during the first three years of President Joe Biden’s administration, it hasn’t been enough. More judges and higher closure rates haven’t kept pace with the flow of new cases.

RULES CHANGE WITH NEW PRESIDENTS

A woman from El Salvador, known in legal filings only by the initials A-B, fled from an abusive husband to the United States. She sought asylum. A local immigration judge denied her application in 2015.

The next year, the Board of Immigration Appeals threw out that decision and found that A-B was part of a particular social group: “El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners.”

The reasoning was that El Salvador’s law enforcement did little to protect such women.

In 2018, then-United States Attorney General Jeff Sessions overruled the board. A-B did not meet the criteria after all. And since immigration courts fall under the executive branch’s authority, Sessions could change the law.

Then, it changed again. President Joe Biden’s attorney general, Merrick Garland, threw out Sessions’ rewrite in 2021.

The “yo-yo” effect of A-B’s case demonstrates a fundamental problem with immigration court, her lawyer Andrés López, told The Charlotte Observer.

The rules change constantly.

“I can’t with certainty tell any client after November of next year — if it’s President Trump or another president — what the rules are going to be,” López said.

A potential solution, he and Snyder said, would be to remove immigration courts from the executive branch’s authority. Congress has used its power to create specialized courts before, like U.S. Bankruptcy Court. The American Bar Association has long supported such an idea for immigration courts.

“This lack of independence in the current structure undermines the integrity of the court system and adversely impacts due process for noncitizens in removal adjudications,” the ABA has said.

JUST THREE IN-PERSON JUDGES

Charlotte’s immigration court serves not just Charlotte and Mecklenburg County — like the county courthouse. It serves both the Carolinas. Yet, it has only five judges who routinely handle cases, and just three who work in person.

The backlog can be explained by supply and demand.

“The backlog stems from the shortage of immigration judges, whose role it is to adjudicate removal cases,” University of North Carolina Law Professor Eisha Jain wrote in an email. “There are insufficient judges relative to the number of removal cases filed by the government.”

Little political will has been shown to actually reduce the backlog, another expert said.

SOLUTIONS TO IMMIGRATION BACKLOG

There might be two ways to clear it, UNC Law Professor Rick Su told The Observer.

More immigration judges could be hired and more resources could be poured into immigration courts. Or the law could make asylum harder to attain.

There’s an ideological divide typical of immigration issues, he said.

“It’s not clear that we’re actually directing the resources to the problem that we have now as opposed to the thing that people think the problem is,” he said. “That’s why we keep wanting to put more money into border security.”

It’s an odd want, he said. Immigrants today are crossing over and waiting for border security to pick them up. Then they seek asylum.

But the national discussion doesn’t go into allocating more resources for immigration courts, to detention or to shelters, he said. Instead, the old idea of immigrants crossing the border and hiding persists, he said.

CHARLOTTE COURT IS ESPECIALLY PUNITIVE

Charlotte’s immigration court also has a reputation for being punitive.

Federal immigration judges in Charlotte denied asylum in 88% of cases from 2013 through 2018, The Observer reported in 2019.

Hardline judges rush to deny applicants, and their rushing only exacerbates the backlog, lawyers told The Observer more recently.

“Under the law every person is entitled to their day in court, is entitled to have their claims heard in a neutral setting,” Snyder said. “But in practice, at least in recent history, the immigration judges have done everything they could in court to make it clear that most respondents are going to be ordered deported. But what ends up happening is that it just kicks the can down the road.”

Someone might apply for asylum and be denied. From there, they appeal. And with so few judges and so many cases, it adds up.

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