From the earliest months of the Trump administration, immigrant communities and advocates sounded alarm bells about new Department of Justice (DOJ) policies intended to expedite deportations at the expense of due process. One of the most confounding of these policies is the “detailing” of immigration judges from their regular posts to “surge courts” at detention facilities on the border. Those familiar with the immigration court system decried this plan from its inception as certain to create chaos and further weaken the already anemic due process protections in place for immigrants facing deportation proceedings. We now know from internal government documents that these fears were warranted. In at least five of the detention centers where the Trump administration’s so-called “surge courts” were established, immigration judges arrived for temporary detail assignments to find there were not enough cases to keep them busy. In order to accommodate these inefficient temporary details, the immigration court system delayed more than 22,000 immigration court hearings nationwide.
In response to a National Immigrant Justice Center Freedom of Information Act request, the DOJ’s Executive Office for Immigration Review (EOIR), the agency that oversees the immigration court system, has released internal memos and emails providing insight into the rapid establishment of the surge courts. The nearly 200 pages of documents span correspondence between EOIR and Department of Homeland Security Immigration and Customs Enforcement (ICE) from February through May 2017.
Politico Magazine covered these findings today as part of its investigation into the growth of the immigration court backlog under the Trump administration.
The Trump administration saw the surge courts as one means to accommodate the large increase in deportation cases expected – and eventually realized – under the Trump administration’s immigration executive orders. Immigration judges were removed from already-backlogged immigration dockets to be sent on one- to two-week “detail” assignments in courts in at least a dozen detention centers around the country. The policy appears to have been developed without meaningful consultation with experts in the immigration court system.
A chart compiled by EOIR in response to NIJC’s information request shows that 22,811 hearings were rescheduled in courts throughout the country because judges were sent to surge courts. In many of these cases, volunteer attorneys and clients traveled long distances to court only to learn from the court staff that their cases would not be heard that day. The human costs of these delays can be tragic; a delayed case can mean delayed employment authorization, delayed protection, and delays in reunification with spouses and children waiting abroad in dangerous conditions.
In February, an email to the Office of the Principal Legal Advisor for ICE detailed the docket sizes that would warrant assigning a detail immigration judge from another court:
But by April 4, 2017, an EOIR internal review of the surge courts found at least five courts where assigned judges were not fully occupied:
Due process rights and impartiality must be paramount in immigration court, where judges adjudicate asylum requests for men and women who fear life-threatening harm in their countries of origin as well as discretionary relief requests that determine whether families may remain together or endure permanent separation. Yet unlike other judicial bodies, the immigration courts lack meaningful independence from the executive branch because EOIR is a component of the DOJ. The immigration court system—already crippled by backlogs and unacceptable disparities in decision-making—cannot bear political machinations such as the “surge court” details.
NIJC calls on members of Congress to engage in robust oversight of the DOJ to protect the impartiality of immigration judges in the face of clear evidence of the administration’s efforts to conscript them into furthering an agenda of mass deportations.
Read and download the full documents at https://immigrantjustice.org/immigration-surge-courts
Heidi Altman is NIJC's director of policy and Tara Tidwell Cullen is NIJC's director of communications.