Immigration judge says trial workloads and resource constraints are 'a problem'

Transcript

A MARTÍNEZ, HOST:

Border crossings are down since the expiration of the pandemic-era border restriction known as Title 42. Here's Homeland Security Secretary Alejandro Mayorkas on CNN yesterday.

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ALEJANDRO MAYORKAS: Over the past two days, the United States Border Patrol has experienced a 50% drop in the number of encounters versus what we were experiencing earlier in the week before Title 42 ended.

MARTÍNEZ: U.S. officials have now reverted back to processing all migrants under Title 8. The law carries penalties and expedited removals for those crossing the border unlawfully. The Biden administration is also requiring migrants to seek asylum in a nation they've crossed through first before they can ask for it in the U.S. So how will the changes affect America's immigration courts? To answer that, we're joined by Mimi Tsankov, who is the president of the National Association of Immigration Judges. Good morning. Now, despite the drop in crossings, thousands are still waiting near the border, and there are already 2 million pending immigration cases. Do you expect that backlog to get worse?

MIMI TSANKOV: Well, we can certainly predict that with any surge at the border, caseloads are definitely going to increase. And as you just mentioned, with those backlogs at an all-time high of over 2.1 million cases currently pending, it's only going to get worse. Right now the judges have about 3,500 cases that they have on their individual dockets at the 69 courts around the country, and we're really concerned whether we're going to be able to meet the expectations of the administration in resolving these cases expeditiously.

MARTÍNEZ: When it comes to granting asylum, what are some of the factors that you consider when deciding that?

TSANKOV: Well, we look at whether the respondent who's appearing before us can present documents that establish that they would be persecuted in their home country if they were ordered removed. So in order to judge the extent to which they can meet their burden, we look at the types of documents that they submit, how they present testimony before the court and the type of experts that they present to establish that it's objectively reasonable that they would be persecuted if they were returned.

MARTÍNEZ: And those documents - I'm fascinated by this - what do they typically show if they prove that there is state discrimination?

TSANKOV: If they are trying to establish that they would suffer political persecution, they might present a card that shows that they've been a member of a political party. They might show documents to establish, maybe in the newspaper, that they attended a rally and that there was some sort of government persecution of their activities in that rally. If it's a religious-based persecution, they might show us a baptismal certificate or some sort of religious certificate of some type or their attendance at religious ceremonies.

MARTÍNEZ: And how long does that typically take to go over all the evidence? I'm trying to figure out exactly, case by case, how long each of those cases may last, typically.

TSANKOV: Some of them can be quite straightforward. The trial itself, it might take a couple of hours to complete the cases. You may already know this, but the immigration judges are hearing cases day in and day out, usually 3 to 4 trials a day. So with 3,500 cases pending, we just don't get as much time as we'd like to be able to devote to each and every one of the cases.

MARTÍNEZ: Do things move quicker when someone has a lawyer with them?

TSANKOV: Absolutely. As immigration judges, we always encourage the respondents to seek representation because, as you know, they don't have the right to free representation in immigration court. Fortunately, there are a lot of nongovernmental organizations that are providing some assistance to them. And one of the most recent initiatives that the administration just came out with was something called the Counsel for Children Initiative, that in eight courts around the country, they're going to try to help children seek counsel.

MARTÍNEZ: How often do you see attorneys with people?

TSANKOV: For the vast majority of the cases that I preside over in New York City, really, pretty much almost everyone is represented. And if they don't have counsel on the day of their first or second hearing, if they can explain that they've been really trying to seek representation, if I have sufficient basis within which to grant a brief continuance, I will do so. But there is a limitation in the law as to how long we can continue to push a case, you know, over to a new hearing while they're waiting to seek representation.

MARTÍNEZ: And I know the administration has moved to add more immigration judges. Is that going to be enough? Or is - as you said, is this going to be one of those things where it's just too much to think that it's going to be expedited that quickly?

TSANKOV: It will always be a problem trying to meet 2.1 million cases because if you do the math on that, that's 3,500 cases. That's a - per judge. That's assuming we didn't even get any new cases coming through the door, which as we know, will not be the case. So we're very hopeful that the administration will be able to hire the judge teams that we need to help address the chronic staffing shortages.

MARTÍNEZ: The older cases - it's going to go chronological - are they going to be handled first in front of the newer ones?

TSANKOV: It'll depend on what the administration decides will be the priority.

MARTÍNEZ: OK.

TSANKOV: And law enforcement priorities prevail.

MARTÍNEZ: Thank you. Mimi Tsankov is the president of the National Association of Immigration Judges. Thank you very much.

TSANKOV: Thank you. Transcript provided by NPR, Copyright NPR.