Dolores Bustamante Romero crossed the U.S-Mexico border fifteen years ago with her three-year-old daughter, Miriam—fleeing, she says, because of an abusive partner and the failure of police in Mexico to protect her. Now her fate rests with a clogged and compromised immigration court system that has grown harsher under President Donald Trump.
The system doesn’t care that Bustamante, forty-six, has committed no crime. It doesn’t care about the years she spent toiling in the apple orchards to provide for her daughter, who begins college in the fall.
Before entering the Immigration and Customs Enforcement (ICE) complex in upstate New York for her deportation hearing in May, Bustamante expressed appreciation for her supporters and hoped that her faith could give her strength in a court system stacked against her. “I am really nervous,” she said. “Thank you all for your prayers and for your support.”
The nation’s immigration court system, consisting of sixty courts with 334 judges as of mid-April, is swamped. Its backlog reached 714,067 cases at the end of May, up 171,656 cases since Trump took office, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC).
Rather than delivering more resources, Trump has talked about getting rid of immigration courts altogether, so there are no obstacles to deportation.
Rather than delivering more resources, Trump has talked about getting rid of immigration courts altogether, so there are no obstacles to deportation. “Whoever heard of a system where you put people through trials,” Trump told Fox & Friends in late May. “It’s ridiculous. We’re going to change the system.” In late June, he reiterated that sentiment with a tweet: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
Attorney General Jeff Sessions’s “zero tolerance” strategy calls for prosecuting undocumented immigrants who have crossed the border on criminal charges before putting them into deportation proceedings, and has included such inhumane practices as family separation. The immigration courts—never an independent branch of the judiciary, but nestled within the Department of Justice—have become part of the administration’s anti-immigration deportation machine that, among other things, threatens to cripple the agricultural sector of the U.S. economy.
Undocumented immigrants make up anywhere between 50 and 70 percent of agricultural workers, says Bruce Goldstein, president of Farmworker Justice, a nonprofit advocacy group based in Washington, D.C. As detention facilities swell with apprehended immigrants, farmers worry whether they’ll make it through the fall harvest.
“Not many people like to do this kind of work—from sunrise to sunset,” says Bustamante, who is now trying to overturn the deportation order that Immigration Judge Steven Connelly issued after he rejected her asylum plea at a May 8 hearing. Bustamante’s lawyer, Jose Perez, has filed a notice of appeal.
Connelly, who was an assistant chief counsel for ICE before becoming an immigration judge in 2010, tempered his skepticism about Bustamante’s case only mildly, by interjecting the word “regrettably” as he read aloud his decision. According to TRAC, Connelly denied asylum in 82.7 percent of the 225 asylum cases he decided between fiscal years 2012 and 2017. (Nationally, the average was 52.8 percent.)
What’s more, victims of domestic violence have a much slimmer chance of gaining asylum following Sessions’s June decree overruling a 2016 Board of Immigration Appeals decision favorable to a Salvadoran woman seeking asylum. He set new ground rules that narrow the definition of what constitutes a persecuted “social group” under asylum law. Conjuring up the image of an asylum process riddled with what he’s called “rampant fraud and abuse,” Sessions is stamping out whatever justice can be found in the immigration court system.
“The Trump Administration, through Attorney General Sessions, is sending a strong message that it has very little respect for U.S. and international obligations to those fleeing persecution,” says the co-counsel in that 2016 case, Karen Musalo, who directs the Center for Gender & Refugee Studies at the University of California-Hastings. “It treats all undocumented individuals as criminals—but seeking asylum is a human right, not a crime.”
Immigration case prosecutors, from the Department of Homeland Security, are also taking a tougher tack. “DHS is pushing back at every single turn, even for individuals who are eligible for relief,” says Stephanie Taylor, an immigration lawyer based in Austin, Texas. “They oppose everything.”
In the meantime, the Trump deportation machine is yanking into court more undocumented immigrants whose cases were previously shelved as administrative closures. The number of cases put back on the calendar rose to 20,952 for the fiscal year that ended September 30, up from 14,759 the previous fiscal year.
All of these things together are having a devastating effect.
Eladio Beltran, who has been living in the United States since he crossed the U.S.-Mexico border in 2000 at age fourteen, had his life turned upside down when he was ordered to appear in Buffalo immigration court in September for a deportation appearance.
“I’m afraid—afraid of being deported to Mexico,” says Beltran.
Now thirty-two, Beltran has worked in the fields—mostly on farms in western New York—without incident and is raising four young children, all U.S. citizens.
A traffic stop in February 2014 put Beltran in immigration court. In May 2016, his court case was administratively closed, but Beltran was required to check in with ICE, initially every month and more recently on a quarterly basis.
In April, Beltran was told his case was back on a judge’s calendar. “There should be a way for me to stay and just work to provide for my children,” he says.
Immigration courts, which began in 1891 under the Department of the Treasury, are now part of the Justice Department’s Executive Office for Immigration Review. The National Association of Immigration Judges has long called for these courts to have more independence.
“The entire immigration system needs to be restructured,” says Immigration Judge Dana Leigh Marks, a spokeswoman for the group. “The government has an advantage—an unfair advantage.” She adds, “We want to be taken out of the Department of Justice so that we don’t have a law enforcement officer—the Attorney General—being our boss.”
A decision by an immigration judge can be appealed to the Board of Immigration Appeals, which is part of the Justice Department, and then to a federal appellate court, which typically defers to a judge’s ruling in asylum cases unless the decision is clearly erroneous.
Currently, the immigration court system is a place where justice can be hard to find.
Currently, the immigration court system is a place where justice can be hard to find.
Comedian John Oliver, in an April segment of his HBO show Last Week Tonight, provided a chilling look into the nation’s immigration courts. He showed how individuals—often without a lawyer—are thrown into hearings that can have life-or-death consequences and yet last only a matter of minutes.
“Sadly, the system is a complete mess,” says Oliver, in a laughless line.
Sessions is determined to chip away at the vestiges of due process in immigration courts with such rulings as the one he issued in March vacating a 2014 Board of Immigration Appeals decision that required an immigration judge to provide an asylum applicant a full evidentiary hearing.
A review of 767 complaints closed from 2008 to 2013 obtained under the Freedom of Information Act and a related lawsuit by the American Immigration Lawyers Association show how dysfunctional the court system can be, with judges taking on the role of prosecutor and asylum seekers feeling shortchanged.
“The complaint process to many seemed like a black hole—immigration attorneys, advocates, and others would complain about immigration judges’ conduct and nothing would appear to be done,” says Julie Murray, an attorney with Public Citizen, which is representing the Lawyers Association in this lawsuit.
The Southern Poverty Law Center has also documented serious problems with the immigration courts in a court-watching project it ran in 2016. Students at Emory University School of Law witnessed Atlanta Immigration Court judges making prejudicial and hostile statements, routinely canceling hearings, setting prohibitively high bonds, and failing to have proper interpreting services available.
In a private conversation with one of the project observers, Judge William Cassidy purportedly said that “if you come to America, you must speak English.”
In a move that is likely to make a bad situation worse, the Justice Department is now putting immigration on a form of assembly-line decision-making.
Under the Justice Department’s new quota system, judges will be expected to complete at least 700 cases a year and meet other metrics, such as having a reversal rate of less than 15 percent. Those who fall short could lose their jobs.
Dolores Bustamante Romero
“This means that immigration judges have a financial stake in the number of deportation orders they enter, or clients they convince to self-deport, or voluntarily depart” says a statement submitted by thirty-eight immigration law professors to the Senate Judiciary Subcommittee on Border Security and Immigration. “Tying their livelihood to speedily churning cases contradicts their oath as judges.”
And Sessions, continuing a trend that began before he became Attorney General, has been loading up these courts with former prosecutors. Thirty-three of the first forty-five immigration judge appointments made by Sessions have experience with the Department of Homeland Security, usually ICE, or as a prosecutor at some level of government.
Many of these appointments began under the Obama Administration, but there are signs that the Sessions Justice Department has been seeking to further skew the results. One candidate for an immigration judgeship from Texas, who asked not to be identified, says he was told by an Obama Justice Department official in October 2016 that he was just a background check away from taking office in May or June 2017. But that never happened. This past April, he received a two-sentence letter saying his appointment had been rescinded.
“I think that the Executive Office for Immigration Review thought I’d be pro-immigrant,” says the rejected candidate. He says he’s filed a complaint with the Office of Special Counsel, which is supposed to protect against politics entering into immigration judge selection.
Another derailed appointee was Dorothea Lay. Currently associate chief counsel with the U.S. Citizenship and Immigration Services, Lay has spent her twenty-five years in government on the administrative—not prosecutorial—side of immigration law, with a specialty in asylum. Over the years, she has been featured in various panel discussions on this topic.
She applied for an opening on the Board of Immigration Appeals in March 2016 and was told in October that she was the unanimous choice of a three-member review panel, says Zachary Henige, a lawyer representing her. But Lay was never appointed. She was told by the Justice Department this past February that she did not get the job and that the “needs of the agency have evolved,” according to Henige.
“The Trump Administration viewed her as affiliated with Democrats,” says Henige, who has also filed a complaint with the Office of Special Counsel, alleging that Lay was a victim of discrimination.
In an April 17 letter to Sessions, four Democratic members of the U.S. House of Representatives expressed “our grave concern regarding allegations we have received from whistleblowers indicating that the Department of Justice may be using ideological and political considerations to improperly—and illegally—block the hiring of immigration judges and members of the Board of Immigration Appeals.” The letter notes that these jobs are protected by Civil Service law.
On May 8, the four members were joined by four more colleagues in the House and Senate urging Justice Department Inspector General Michael Horowitz to conduct an investigation. Their letter notes that more whistleblowers had come forward with information that corroborates allegations in the first letter.
The Justice Department has denied that political considerations have influenced its immigration judge selection process. But there would be nothing new about political meddling in the immigration court system.
Under President George W. Bush, the Justice Department tried to load the immigration courts with political appointees for at least the better part of three years. Instead of the department’s Executive Office for Immigration Review screening candidates, names were fed by the White House Office of Political Affairs and Republican members of Congress.
Now, in addition to filling Board of Immigration openings and vacancies on immigration courts, Attorney General Sessions will appoint 100 new immigration judges—positions provided for in the omnibus spending bill approved by Congress in March.
As “boss” of the immigration courts, Sessions issued a directive in May greatly restricting the ability of immigration judges to administratively close cases—a way judges had been able to take undocumented immigrants detained by ICE out of deportation proceedings.
There were 355,835 administratively closed cases as of last October, Sessions said.
By U.S. law and international treaties, asylum is supposed to be available to those fleeing persecution based on race, religion, nationality, membership in a particular social group, or political opinion. But asylum cases have always been difficult to prove, especially when the immigrant making the plea is from Mexico or Central America.
“The administration is pushing the rhetoric that many of these asylum seekers are liars,” says Melissa Lopez, executive director of the Diocesan Migrant & Refugee Services in El Paso, Texas. She explains the difficulty that asylum seekers face.
“The law wants you to prove who is threatening you and why,” Lopez says. “But the reality is that if somebody comes to my door and puts a gun to my head and threatens me as I am running out of my house, I am not going to stop and ask, ‘Who are you with and, I am sorry, can I get your name as well? And why are you targeting me?’ ”
From fiscal years 2012 through 2017, immigration judges denied asylum to applicants from Mexico 88 percent of the time, while the denial rate for those from El Salvador was 79.2 percent, followed by a denial rate of 78.1 percent for Hondurans and 74.7 percent for Guatemalans, according to statistics compiled by TRAC.
Applicants from China, on the other hand, found their asylum requests denied just 20.3 percent of the time.
With immigration courts having become increasingly unfriendly to asylum, the overall denial rate has been on the rise—from 44.5 percent to 61.8 percent over the past five fiscal years.
In April, the Sessions Justice Department announced plans to suspend the government’s Legal Orientation Program, which last year offered information sessions to more than 50,000 immigrants. But bipartisan opposition to such a move prompted Sessions to back off.
According to TRAC, detainees without a lawyer are granted asylum only about 10 percent of the time.
On June 11, Sessions imposed new restrictions to make it harder to attain asylum on the grounds of fleeing domestic violence and gang violence. But even before then, winning asylum in such circumstances was an uphill battle.
Bustamante’s case provides a good example. She testified that she fled Mexico in 2003 after her partner had beaten her and she couldn’t get protection from the local government. Last September, her son Omar, who still lived in Mexico, was killed; she suspects it was because he would not join a gang. Bustamante testified that she had recently received anonymous messages from someone familiar with his unsolved murder.
Judge Connelly nonetheless denied her asylum, or even relief from deportation. Now her fate rests on her lawyer’s appeal, which will be decided by the same immigration court system that has already turned her down.
Sidebar: Complaints Shed Light on Court Dysfunction
A disturbing window into the world of immigration judges is provided by 767 complaints against judges on these courts released to the American Immigration Lawyers Association, as a result of a Freedom of Information Act request and lawsuit filed.
“There are some judges—certainly not the majority—who are subject to repeated complaints,” says Julie Murray, an attorney with Public Citizen, representing the Lawyers Association in this litigation. “I think that raises questions whether these are appropriate people to be in that position.”
The documents cover complaints resolved between 2008 and 2013. Whether the names of the judges—redacted by the Justice Department—will be released is subject to an ongoing court battle. In November 2017, U.S. District Judge Christopher Cooper, in the District of Columbia, ruled that the names of fourteen immigration judges—including some with the most egregious complaints—should be disclosed, but that has not happened because Cooper’s decision is under appeal.
Immigration lawyer Bryan Johnson has posted the names of some of the immigration judges, along with complaints connected to them. He identified names, according to the website Techdirt, by using software that could see through redactions. The Justice Department disputes the accuracy of some of what Johnson has posted—but has provided no evidence of what is incorrect.
The thousands of pages of documents posted on the Lawyers Association’s website tell of inappropriate behavior, such as one immigration judge saying to a legal assistant, in an apparent reference to her country of origin, “So when you grow up, you’re going to be a suicide bomber?”
In another case, an immigration judge referred to an autistic child who had become upset in the courtroom as “a wild animal posing as a child.”
Another immigration judge referred to black men who married white women who were U.S. citizens as “predators” and mocked gays, while referring to Eastern Europeans as “good people.” A law clerk was bothered enough by this to file a complaint.
Still another judge rejected an asylum plea from a teacher from El Salvador who testified that she fled her homeland because she was threatened by members of the MS-13 gang in response to her giving some of them failing grades. “We are waiting for you” was written on a school blackboard, followed by the initials of the teacher’s name.
The immigration judge declined to hear an expert that the teacher wanted to show the government of El Salvador’s ineffectiveness in controlling MS-13. And even though the judge found the Salvadoran woman’s testimony credible, the teacher was ordered deported, with the judge ruling that her claim “did not rise to the level of persecution.”
According to the records, the judge had told the lawyers from both sides in this case that whoever could solve a riddle that the judge posed to them would win. The government lawyer won this contest. The judge was not disciplined for issuing the riddle challenge, other than being spoken to by a Justice Department official, and the judge’s decision to deny asylum was upheld by the Board of Immigration Appeals.