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Judges Union: Immigration Courts, an ‘Alternate Legal Universe’

Image: File photo of Father Arias, an advocate with New Sanctuary Coalition of New York City, speaking with immigrants following their immigration hearings at the U.S. Federal Building in New York

Father Fabian Arias, (2nd R) an advocate with the New Sanctuary Coalition of New York City, an immigration advocacy group, speaks with immigrants following their immigration hearings at the U.S. Federal Building in New York, in this July 10, 2014 file photo. BRENDAN MCDERMID / Reuters

Immigration courts are an “alternate legal universe” where many defendants have no attorney and judges must handle thousands of cases and have little discretion to use in cases of people with convictions that are decades old said immigration judges on Wednesday.

Two judges who are leaders in an immigration judges' union said the arrivals of tens of thousands of children to the U.S. border this year has helped reveal the unflattering realities of the courts.

They listed a litany of issues faced by the courts and the people subject to them: Judges mark and archive their own evidence and have no bailiff or court reporter. They are not independent arbitrators, causing a loss of confidence and triggering appeals and lawsuits. Immigration court judges have no contempt authority over government attorneys because DOJ has not enacted regulations for judges to exercise that authority.

All this even though the courts handle what are, in effect, “death penalty” cases because some people ordered removed from the U.S. could be killed upon return to their country, said Dana Leigh Marks, president of the National Association of Immigration Judges.

An immigration judge said the immigration courts’ budget is just 1.7 percent of the $18 billion spent annually on immigration law enforcement “and the strain is showing.”

“Immigration courts are the forgotten stepchild of the U.S. Department of Justice. Our role is to serve as a neutral court but paradoxically, we are housed in a law enforcement agency,” said Marks, a San Francisco federal administrative judge.

Marks said the immigration courts’ budget is just 1.7 percent of the $18 billion spent annually on immigration law enforcement “and the strain is showing.”

There are 277 field judges whose dockets exceed 375,000 cases. Marks said she has 2,400 pending cases that take about 15 months before an initial arraignment hearing and 3½ to 4 years to be resolved.

“Because we have been left to the mercy of the political winds which constantly buffet immigration issues, we have been resource starved for decades,” Marks said.

Denise Noonan Slavin, a Miami-based administrative judge and executive vice president of the judge’s union, said the government, always a party in the cases, has heavy influence in the courts’ operation.

Immigration judges sometimes speak with DHS attorneys in cases, exparte communication which would not be allowed in regular courts. The Department of Justice gets to decide whether a judge recuses himself or herself from a case. The courts have been forced to move the cases of the border children to the top of their dockets even though it makes more sense to hear the cases of their parents first, Slavin said.

“No other court would turn the docket on its head at the request of one party,” Slavin said.