If You Don't Fund Judges, Don't Complain About Backlogs

And other takeaways from the president's border security funding request

By Andrew R. Arthur on January 9, 2019

Lost in the national conversation over the border-security shutdown (media reports of which have focused almost exclusively on "the Wall") are the president's other budgetary requests, which, according to CBS News, are as follows:

$563 million for 75 additional immigration judges and support staff, $211 million to hire 750 additional Border Patrol officers, $571 million to deploy 2,000 law enforcement personnel, $4.2 billion for 52,000 detention beds, $675 million for inspection technology at ports of entry and $800 million for "humanitarian needs," which include funds for medical support, transportation, supplies and temporary facilities along the southwestern border.

If the Democrats refuse these funding demands, they and their media allies will lose some of their best talking points. For example, a November 2018 opinion piece in the Los Angeles Times begins:

You have to give credit to the Trump administration when it's due. The increased pace of arrests of people living in the country illegally, combined with the order to reopen suspended cases, has pushed the backlog of pending immigration court cases to nearly 1.1 million, according to the Transactional Records Access Clearinghouse [TRAC] at Syracuse University.

That's more than double the backlog when Trump took office, and comes despite a 30% increase in the number of immigration judges.

No president in history has overseen such a huge buildup in cases. President Obama? The best he could do was 630,000 cases. Trump is so #WINNING when it comes to gumming up the immigration courts.

Oh, wait, that's not a good thing.

Fair enough. So how do you get rid of backlogs? More immigration judges, as I have explained numerous times in the past. Then-Attorney General (AG) Jeff Sessions hired 128 new immigration judges (IJs) in just two years (a fact alluded to in the screed above), bolstering a drastically underfunded IJ corps, but this doesn't even come close to the number of IJs our nation's immigration courts currently need.

The website of the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component responsible for the immigration courts notes that there are "approximately 400 immigration judges located in 62 immigration courts throughout the Nation." TRAC's latest report states that there were 809,041 pending cases before the immigration courts as of November 2018. That is more than 2,022 cases per IJ. An additional 75 immigration judges would bring that down 1,703, or 16 percent. Not perfect, but a start.

Democrats will no longer be able to complain about backlogs, or even alien respondents' access to justice, if they don't pay for more IJs.

Further, one of the main complaints about a border wall is that it is not necessary for several reasons. For example, as the Texas Tribune reported in January 2018:

"Don't let the fake media tell you that I have changed my position on the wall," Trump tweeted in April. "It will get built and help stop drugs, human trafficking, etc." More recently, Trump has tied wall funding to any deal to give legal status to undocumented immigrants benefitting from a program known as DACA.

Still, those who think Trump's "big, beautiful wall" (he doesn't like to call it a "fence") would actually stop all or even most of the undocumented immigrants and illegal drugs coming across the border from Mexico might want to think again.

Since 2007, the number of undocumented immigrants who overstayed visas after first entering the country legally — across a bridge or port of entry — far outnumbered those who sneaked in, according to a 2017 report by the Center for Migration Studies. A wall would do nothing to stop them.

I hear this argument a lot, and there is some merit to it. It is, however, a little bit like saying that one solution won't solve every problem, so why utilize that one solution? But let's simply take it at face value. What would allow the U.S. government to apprehend visa overstays? Ending sanctuary policies would help, but that would appear to be a nonstarter for most Democrats. Absent that, the only solution is to provide more officers to the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) to go and apprehend those visa overstays. If the Democrats will not fund 2,000 additional officers, however, they lose the "most illegal aliens entered legally and overstayed" argument, too.

Another oft-heard refrain is, as Rep. Henry Cuellar (D-Texas) asserted in a January 2018 CNN opinion piece: "The answer to border security is technology, not wall." He explained:

I was born and raised on the US-Mexico border, and I represent 290 miles of that border today. I know from personal and professional experience that a physical wall would be ineffective at reducing the number of undocumented people and the amount of illegal drugs that come across the border into the United States, a point I tried to explain in Tuesday's bipartisan meeting with President Donald Trump.

The more effective ways to secure the border — which Democrats could support — include the use of modern technology, increased border personnel and better coordination with our southern neighbor.

Note the last line in that sentence: "increased border personnel". Technology to identify illegal entrants without Border Patrol Agents to apprehend them is worthless. It's like having a security camera without anyone watching it, or police to respond to an intruder. Or better, as my colleague Dan Cadman has stated:

How often have we heard politicians from both parties speak of "smart border security" and "layered defenses"? Translated into plain English, that means tens of billions of dollars for humans and technology — and yet they refuse to pony up $5 billion for a physical barrier that will do more to prevent illegal crossers than any type of technology on the market, short of lethal force technology which we all know and agree is a non-starter.

Respectfully, if you won't fund the agents, Rep. Cuellar, your argument falls apart.

Democrats have also been focused on the deaths of two children, who were migrating illegally with their parents, along the Southwest border. For example, an article in Politico on January 2, 2019, captioned "Nadler: Trump administration 'apparently willing' to have migrant kids die", contains the following:

Incoming House Judiciary Chairman Jerry Nadler blasted the Trump administration Wednesday for the recent deaths of two migrant children in government custody, placing the blame squarely on the White House and its policies.

The Trump administration has faced an avalanche of criticism in recent months over immigration policies that separated thousands of children from their parents who brought them into the U.S. That criticism has grown recently in the wake of the deaths of two immigrant children in U.S. custody.

"This is inhuman, and it's not precedented," Nadler (D-N.Y.) said on "CBS This Morning," referring to the zero-tolerance policies the administration has imposed at the border. "It's a deliberate creation of the Trump administration, which is trying to make things as miserable as possible. And if kids die, they're apparently willing to have that."

Detention is the surest way to stem the tide of aliens entering the United States illegally, particularly parents traveling with their children in the expectation that they will be released in the United States, which leads to the deaths of immigrant children who show up sick. We only see the two who die on our side of the border: there is no reporting on those who die on the other side.

As for the "tide" part of that statement, one need only look at statistics on apprehensions along the Southwest border issued by U.S. Customs and Border Protection (CBP). In November 2018, 25,172 aliens traveling in family units, and 5,283 unaccompanied alien children (UACs) were apprehended along that border, out of a total of 51,856 aliens that month all told. That means that more than 58 percent of all the aliens apprehended by the Border Patrol in November 2018 were either children, or children traveling with parents or guardians.

Compare those numbers to April 2017, when CBP statistics show that 997 UACs and 1,118 aliens traveling in family units were apprehended, out of 11,127 aliens, or just more than 19 percent of the total. Why the difference? Because although the president vowed to end catch and release, he was unable to do so without Congress's help to close the loopholes that encourage parents to travel to the United States with their children, or send their children to the United States by themselves, which help was not forthcoming.

Don't take my word for it, however. The second child to die in December 2018 after entering the United States illegally with a parent was Felipe Gomez Alonzo, as I stated in a post that month. Reuters interviewed Felipe's mother shortly thereafter. According to that outlet's report:

Speaking at her home in a mountainous region of western Guatemala, Catarina Alonzo said neighbors had told the family that taking a child would provide her husband with a way in.

"Lots of them have gone with children and managed to cross, even if they're held for a month or two. But they always manage to get across easily," she told Reuters in an interview.

Pretty conclusive evidence of the enticement that our current border laws provide to parents to bring their children on the hazardous journey north. The closest comparison I can think of is the witch's house in the Grimm brother's fairytale, "Hansel and Gretel". But to paraphrase Red (Morgan Freeman) in "The Shawshank Redemption", the border "is no fairy-tale world."

Even Time has noted the lack of sufficient detention space for families along the border, reporting: "Border authorities are struggling with outdated facilities ill-equipped to handle the growing increase in family migrants, resulting in immigrants being released onto the streets every day." That article continues:

[B]order agents continue to struggle with growing numbers children and families. Officials say they are stopping about 2,000 people a day, more than 60 percent children and families, higher than during many periods under President Barack Obama. They referred 451 cases to a medical provider from Dec. 22 to Dec. 30, more than half children.

David Aguilar, the Border Patrol chief from 2004 to 2010 and a former acting Customs and Border Protection commissioner, said agencies that oversee long-term immigration custody need more funding to immediately step in after the Border Patrol makes an arrest. He says the agency is "overwhelmed" in dealing with all the children and families coming across the border now, much different from 1990s and 2000s.


"The demographics and the flows that are crossing the southern border are very different from the demographics and flows when we built the original walls … back in 2006 and 2008," he said.

Given these facts, plainly additional detention space is required. Why Democrats refuse to provide funding for it is puzzling, at best.

Similarly, "$800 million for 'humanitarian needs,' which include funds for medical support, transportation, supplies and temporary facilities along the southwestern border" would appear to be something the Democrats agree with the president on. On January 7, NBC 4 in Los Angeles reported on a visit by Democratic members of Congress to southern New Mexico. That report states:

Freshman U.S. Rep. Xochitl Torres Small of New Mexico, who represents a sprawling district that includes a portion of the border, said there have been some improvements made at Border Patrol stations in the remote region since the deaths but more needs to be done.

"We still need to have medical equipment in all of our facilities in the most rural reaches of the border, to make sure that we have a Border Patrol that's responding to the changing circumstances that we continue to see, to make sure that we have a nimble agency that's able to ensure our border security and also reflect our values," Torres Small said.

As the Southwest border is more than 1,900 miles long, and smuggled migrants are generally attempting to evade detection and therefore not following established routes or entering at designated ports, it is not entirely clear how it would be possible to have sufficient medical equipment "in the most rural reaches of the border" without a huge increase in funding (if even then). Moreover, the erection of barriers along the more remote portions of that border would funnel those migrants to more limited stretches thereof (or even better, ports of entry) where such aid could be administered more quickly and efficiently.

The budget fight is over more than a wall. If Democrats fail to accede to the president's other budget requests, they will lose their best talking points.