More Border Judges Will Not Solve the Problem

But at least people are thinking

By Andrew R. Arthur on May 14, 2019

My colleague Jerry Kammer posted a thoughtful column yesterday in which he discussed an appearance on MSNBC by former Senator Claire McCaskill (D–Mo.), during which McCaskill recognized that there is a crisis at the border. This is a significant development, simply because of the network on which those statements were made, and the fact that the person making those statements was a former senior Democratic member of the upper chamber of the United States Congress. Unfortunately, the proposals made by McCaskill in response to that issue, without more, will not address the current disaster that is unfolding at the Southwest border. It is, however, a start.

The latest statistics from U.S. Customs and Border Protection (CBP) reveal that in April, 103,492 aliens were apprehended at that border entering illegally, or were deemed inadmissible of ports of entry along that border. Of that number, 57,271 (55 percent) were aliens traveling in family units (FMUs), that is, at least one alien adult traveling with that least one alien child. In addition, 9,398 (nine percent) were unaccompanied alien children (UAC), meaning that 64 percent of the aliens taken into custody by CBP along the Southwest border last month were either alien families with children or alien children themselves.

In a February post captioned "Border Patrol's Expensive New Mission," I discussed the negative ramifications that this flow of migrants has had on CBP resources, in the context of the Yuma sector of the U.S. Border Patrol (USBP), which I had just visited:

In FY 2018, the Yuma sector, which has jurisdiction over 126 miles of the border, spent $350,000 for humanitarian support, according to Justin Kallinger, operations officer for the sector. That money paid for more than $150,000 in meals, $15,000 for baby formula and diapers, and $27,000 for blankets. Already in FY 2019, the sector has spent $400,000 to cover humanitarian costs, including more than $240,000 in meals, $45,000 in baby formula and diapers, and $33,000 in blankets. All told, the Border Patrol expects to pay $1.2 billion in humanitarian costs border-wide.

This is a staggering toll, and the responsibility to provide such aid is a far cry from the Border Patrol's primary mission: "to detect and prevent the illegal entry of aliens into the United States" and to "help[] maintain borders that work — facilitating the flow of legal immigration and goods while preventing the illegal trafficking of people and contraband."

As Kammer noted, McCaskill had made proposals to address this issue:

I do think we have to acknowledge that there is a real issue of how many people are showing up at the border right now. I think our numbers of the last month are the highest since 2007. We've topped 100,000 people a month for several months. The system is being overwhelmed. I think all of us can agree on that. . . . What I don't understand is why there hasn't been more urgency about surging resources for the judicial process," she said. "If the judicial process occurs quickly, then asylum is determined. And if it's valid, they stay in this country. And if it's not, they have to go back.

With respect to the urgency of the administration's efforts in response to this disaster at the border, I would note that the president has requested $4.5 billion in supplemental funding to begin to address the issue, as I detailed recently:

According to the White House, of the $3.3 billion for humanitarian assistance:

More than $2.8 billion will go to increase Health and Human Services (HHS) shelter capacity for Unaccompanied Alien Children (UAC) to approximately 23,600 beds.

Department of Homeland Security [DHS] will receive $273 million to stand up, operate, and secure processing centers at the southern border, increasing its capacity by 3,500 beds.

Notably absent from that figure are the additional judicial resources to which McCaskill refers. This is not a simple oversight on the part of the administration, however.

More immigration judges are needed generally, and are needed quickly. Currently, there are approximately 400 immigration judges in the nation's 63 immigration courts, which are located throughout the country, according to the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component with jurisdiction over those courts. More than year ago, James McHenry, the Director of EOIR, explained at a Center Newsmaker event that a minimum of 700 immigration judges were needed to reduce the immigration court backlog as a whole, and even then such hiring would take two to three years.

Curiously enough, however, "surging resources for the judicial process" at the border would actually have a negative effect, system-wide, at least until Congress, the courts, and/or the executive branch addresses the issue of the Flores settlement agreement, which under its latest interpretation requires alien minors (both UACs and minors in family units) to be released by DHS within 20 days of apprehension. As I explained in a May 2018 Backgrounder:

The agreement encourages UACs to enter the United States illegally, and encourages the parents of UACs to hire smugglers to bring them to the United States. Further, it encourages people to bring their own children (or children whom they claim to be their own) when they make the perilous journey to the United States, thinking that it will make it more likely that they (the parents or purported parents) will be more likely to be released if they travel with children.

But you do not need take my word for it. In the April 16, 2019 Final Emergency Interim Report from the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel , the panel concluded that:

The dramatic increase in FMU apprehensions over the past year is directly linked to the U.S. government – executive, legislative and judicial branches – creating "pull factors" that incentivize migrants to bring a child with them to gain entry to and release into the U.S.

At the time that I made my May 2018 statement, according to CBP statistics, 14,808 FMUs were apprehended entering illegally along the Southwest border or were deemed inadmissible at the ports of entry. As noted above, last month, 57,271 FMUs were, a 286 percent increase. If nothing were to change, and I were to write about this issue in a year, you might well see a similar percentage increase.

Additional immigration judges, however, will not solve the problem as long as the current iteration of the Flores settlement agreement is the law, because it will not be possible for those immigration judges to hear the asylum claims made by those FMUs within 20 days. In an August 2018 article, the Associated Press noted: "ICE's average length of stay in immigration detention is about 40 days."

As a former immigration judge, I can state dispositively that 40 days is the minimum amount of time that it would take for the immigration court to take pleadings, receive an asylum application, and hold a hearing on that asylum application. Most of that period is dedicated to ensuring that the alien has sufficient time to secure counsel, physically file the application, and to obtain evidence in support of the application. The court can take pleadings in a matter of minutes, and it usually only takes about two to three hours for the actual asylum hearing and for the immigration judge to issue a decision.

If DOJ were to draw upon that corps of 400 judges and send any of them to the border right now, the dockets of those judges would be continued indefinitely, causing the backlog of cases in the immigration courts (including cases of FMUs and UACs who have already been apprehended and released) to balloon.

That 40 days does not even count appeals. As the bipartisan advisory panel noted: "For cases that are appealed, either to the Board of Immigration Appeals (BIA) or further to the federal district courts, it can be up to five years before a final decision is reached." Of course, appeals are expedited for aliens who are in detention, but even then, it was my experience that it still took about four months for the BIA to issue a decision in a detained case.

The good news is that a former senior Democratic senator has acknowledged that there is a problem at the border. If only her former colleagues who are still in their seats would do the same, real progress of the sort that McCaskill envisions at the border could occur. I am by nature an optimist, but I'm a realistic one. Until the disaster at the border gets much, much worse, and the deleterious humanitarian costs of that disaster (detailed by the advisory panel in its report) become more apparent to the American people, don't expect Congress to act.