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Judge Dana Marks On How The Biden Administration Can Address Immigration Backlogs


Thousands of migrants and asylum-seekers at the U.S.-Mexico border right now have one thing in common. If they don't already have permission to stay in the U.S., they have a court date to make a case to stay. But it will take a while to get a court ruling.


That's what you learn when you step into the shoes of a U.S. immigration judge. Judge Dana Marks has presided in the immigration courts for more than 30 years. She's a leader of the National Association of Immigration Judges, and we called to talk about a fact that constantly shapes immigration news - the absurdly overcrowded immigration courts. Listen to news stories, including on this program, and you will regularly hear passing references to this reality. Just the other day, we heard the voice of a man let into the United States who might wait years for a court date.

What is really going on there? When you hear Judge Marks describe her job, you hear a big reason why the system doesn't work.

DANA MARKS: We have a tremendous backlog, probably in the neighborhood of 1.3 million cases that are pending in our system. That's before 69 courts across the United States.

INSKEEP: Those are shocking, shocking numbers. How long, then, does it take someone to come before your court? They've been picked up by the Border Patrol, or they're asking for asylum. How much time would elapse before you would even see them?

MARKS: It varies tremendously depending on where they are actually going within the United States or whether they're held in DHS custody. If they are held in DHS custody, there's a much faster time frame, and their first hearing is supposed to occur within two weeks. But their final hearing often can be several months before it is held.

INSKEEP: Is it correct that it might take several years even for some people to have?

MARKS: So I sit in San Francisco in a nondetained court. That means the people that come before me have been released on bond or released on their own recognizance. And it can take about three or four years for a case to come to its final hearing date in front of me in San Francisco.

INSKEEP: Why does it take so long? Is it sheer numbers?

MARKS: It is sheer numbers, and it's the fact that resources allocated to immigration enforcement have far outpaced those that have been allocated towards the court hearings. And yet, we're a natural outgrowth of additional enforcement. In 2018, Congress appropriated $16.7 billion to Customs and Border Patrol, $7.5 billion to Immigration and Customs Enforcement, who do the interior enforcement and only 437 million to the immigration courts.

INSKEEP: Didn't the Trump administration increase the number of immigration judges, though?

MARKS: Yes, but there have not kept pace the amount of staff that we need to hear cases or the number of judges that would be necessary to make a significant dent in the backlog because there's no linkage between what comes into our system for a case to be heard and what is decided. In most court systems, there is prosecutorial discretion, where the parties can come to some agreement and the case is settled outside of court, or it's a quick court hearing because someone pleads guilty but has a - an arranged sentence that everyone agrees to. That never happens in immigration court.

INSKEEP: So when I covered immigration under President Obama, I heard about a shortage of judges and this massive backlog of cases. When paying attention to immigration in the Trump administration, we also hear about a massive backlog of cases. And now we have the Biden administration, and you're telling me, of course, there's still this huge backlog. What is the effect of that overload on all the people involved with it?

MARKS: It can be very damaging to them because certain forms of relief - well, in most of them, it's the respondent - that's what we call the defendant in immigration proceedings - the respondent has the burden of demonstrating that they qualify. Well, witnesses disappear. They lose contact with those witnesses that may be essential. Documents get old, and so they have to keep updating the documentation. So cases get stale while pending on the docket.

INSKEEP: What is the effect on you as someone who wants to administer justice?

MARKS: Extreme frustration. We need to operate on both the inflow into the courts as well as what the courts are able to produce. And surprisingly, even with the focus on enforcement by the Trump administration, the restrictions that were placed on immigration judges to allow us the discretion and individual ability to organize our dockets and prioritize cases, that was taken away from us.

INSKEEP: I'd like to phrase my next question this way. Does this constant overload of immigration courts guarantee a certain amount of cruelty toward immigrants? People arrive at the border, and the United States has to decide what to do with them for a period of years while they await their cases. And so either they are forced to remain in Mexico, or they're let into the United States where there can be all kinds of issues and difficulties for them. One way or another, the system fails.

MARKS: The system definitely fails, and leaving people in limbo is very stressful for everyone concerned. It's not productive to the system because you have people in this netherworld, a status where they're known to the government, but they don't have a clear legal status. Sometimes they're given authorization to work. In other situations, they're not. How do we expect them to wait for their court date and obey the laws if we don't give them the opportunity to work when the backlog is so great that they won't have a hearing for years?

INSKEEP: What are the implications of this for the people we're hearing about now who are getting across the border? The "Remain in Mexico" people have been let across, and, of course, unaccompanied minors are coming across by the thousands, and the government is trying to figure out what to do with them.

MARKS: Well, the good news is that instead of having just a crush of cases that are focused all at the border, they're now spread out through courts across the country where these individuals hopefully have family members and networks of friends that can help support them while they're going through the system. So that should allow us to be more effective and efficient in getting those cases to a hearing as soon as possible.

INSKEEP: Nevertheless, these unaccompanied minors, could they become adults and still be waiting on an adjudication?

MARKS: Yes, that can be the case.

INSKEEP: So what do you want or need from the new administration to do your job better?

MARKS: We actually want Congress to amend the law and take the immigration courts outside the United States Department of Justice. The Department of Justice is a law enforcement agency. And what the National Association of Immigration Judges recommends is that the courts be taken outside of a law enforcement agency because the backlog has been created by various administrations in succession, putting their political priorities and policies into effect and using the courts to do that. And that doesn't make sense.

INSKEEP: That's longtime U.S. immigration Judge Dana Marks.

(SOUNDBITE OF MAMMAL HANDS' "SPINNING THE WHEEL") Transcript provided by NPR, Copyright NPR.