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Government Shutdown Stalls Backlog Of Immigration Cases


We're going to continue our conversation about immigration with a look at how the partial government shutdown is affecting the backlog of immigration court cases. Judges are warning that thousands of cases daily will have to be rescheduled because of the government shutdown. Most immigration judges and attorneys are being told not to show up to work. That's adding to a growing backlog in immigration courts.

So I called up Dana Leigh Marks. She's an immigration judge in San Francisco, and she spoke to us in her capacity as the former president of the National Association of Immigration Judges. She's also one of the judges who has been furloughed during the shutdown. She explained how the partial shutdown is unfolding for attorneys and judges working in immigration courts.

DANA LEIGH MARKS: Individuals who are working on detained cases, including judges and support staff, are working now without pay. It's those of us who are in the non-detained court settings who have been sent home.

GONYEA: Can you just briefly describe the difference - what you're talking about there?

MARKS: Sure. Our courts are the trial-level courts that deal with individuals who are accused of being in the United States without proper status. Some of those individuals are actually held in detention, in custody by the Department of Homeland Security while other individuals are released, either without a bond or being required to post some kind of bond to guarantee that they will appear. So the cases that are going forward at this point are people who are held in Department of Homeland Security custody across the nation.

GONYEA: What happens to people whose cases were making their way through the courts, and suddenly they're not?

MARKS: Unfortunately, those cases get postponed pretty much indefinitely. We've never been in a situation that is so dire with regard to the backlog of immigration cases nationwide. There are an estimated 1.1 million cases pending before the immigration courts across the United States. And when we have to shut down, those cases are delayed, sometimes for years, before we have space on our dockets to be able to reschedule them.

GONYEA: Can you speak to the impact on your specific docket in your court?

MARKS: I have more than 4,000 pending cases in front of me right now. And every day that I don't come back to court means the cases I was supposed to hear are going to have to be shoehorned in somewhere later down the line. The problem for people is that individuals lose touch with witnesses. Sometimes they lose their eligibility for a particular benefit they would otherwise qualify for because their relative dies or becomes too old to confer a benefit. So it's a real hardship to have the uncertainty of not knowing when their case is going to be heard before an immigration judge.

GONYEA: Given how the immigration issue has been so prominent, and due to the backlog, of course, was there any sense that the immigration courts might be kept operating through this shutdown?

MARKS: Well, this is what's so ironic, is that the issue of the shutdown deals with immigration policy. And yet 52 percent of the immigration court system is shut down because of the lack of funding.

GONYEA: Given how political this issue has gotten and how much of a hot-button issue it is now because of the call for a border wall, and now because of the shutdown, when these cases come up in court, are the politics of it now like an elephant in the room? What was once a routine hearing suddenly feels different because of that.

MARKS: I don't think the politics per se is the elephant. But the elephant that has his foot on the neck of the immigration judges is the elephant who is saying, do more and do it faster, which is simply unrealistic. A judge's job in our position is to make sure that every hearing provides due process to the person coming before our court. And the fact that politics can influence decisions made by the Department of Justice, who administers the immigration courts, is part of the problem.

And that's why our association for a couple of decades has advocated that we be taken out of a law enforcement agency and be reconfigured as an independent court more like the tax courts or the bankruptcy courts. It seems like a legal technicality, but it frees us from political influences, if that could occur. But that takes an act of Congress, so there we are.

GONYEA: Judge Dana Leigh Marks is an immigration judge, and she speaks to us as the president emeritus of the National Association of Immigration Judges. We reached her in San Francisco.

Thank you.

MARKS: Thank you so much. Transcript provided by NPR, Copyright NPR.