Immigration court: Troubled system, long waits

Balde was granted asylum after spending three years in an Alabama prison.

In this Thursday, Dec. 2, 2010 picture, Mamadou Balde from Guinea sits under a wall of West African masks in the office of his attorney, Glenn Fogle, in Atlanta. Balde was granted asylum after spending three years in an Alabama prison. A bloated immigration court system has been saddled by explosive growth, a troubled reputation and a record backlog of nearly 268,000 cases as of the end of 2010. The problems are drawing increased scrutiny of a little-seen world where justice can seem arbitrary, lives can remain in limbo for years _ and blame seems to be in abundance.
(AP Photo/David Goldman)

Granted asylum after spending three years in an Alabama prison.In this Thursday, Dec. 2, 2010 picture, Mamadou Balde of Guinea, left, is photographed in the office of his attorney, Glenn Fogle, right, in Atlanta. Balde was granted asylum after spending three years in an Alabama prison.
(AP Photo/David Goldman)


CHICAGO — Every morning, they don their black robes, take their seats and listen to the pleas of a long line of immigrants desperate to stay in America. The pace is fast, the pressure intense, the stories sometimes haunting. The work, these judges say, is exhausting:

“The volume is constant and unrelenting.’ … ‘There is not enough time to think.’ … ‘Nobody gives a damn about us!’ … ‘I know I couldn’t do this job if I were not on medication for depression or did not have access to competent psychological care myself.’ … ‘I cannot take this place anymore. What a dismal job this is!'”

These are the voices of immigration judges who determine the fate of tens of thousands of people every year — illegal border crossers, visa violators, refugees who flee China, El Salvador, Iran and other countries, each making a case to remain here.

These judges are at the heart of a bloated immigration court system saddled by explosive growth, a troubled reputation and a record backlog, according to one estimate, of nearly 268,000 cases. The problems are drawing increased scrutiny of a little-seen world where justice can seem arbitrary, lives can remain in limbo for years — and blame seems to be in abundance.

There are lawyers who accuse immigration judges of bias, stall tactics and incompetence. Judges who criticize lawyers as unprepared. Advocacy groups that say some immigrants don’t even understand the proceedings — and in extreme cases, end up unfairly deported.

“It is a maddening system,” says Chuck Roth, director of litigation at the Heartland Alliance’s National Immigrant Justice Center. “It really doesn’t get us anywhere toward justice.”

And that’s no surprise, says Laura Wytsma, a former immigration government lawyer in Los Angeles who does pro-bono work on asylum cases.

“When you take so many things …. inadequate resources, hostile judges, overly aggressive government lawyers, laws that don’t make sense, an immigration bar that generally is not the caliber of civil litigators, language barriers, poor translation,” she says, “you’ve got a system with so many broken parts, it’s a wonder it functions at all.”

Put aside the toll the system exacts on immigrants and their families. These courts, some say, are a bureaucratic disaster.

“This has nothing to do with whether you think someone should be deported or not. What this boils down to is this — if you’re going to have a court system, you have to do it right,” says Malcolm Rich, director of Chicago Appleseed Fund for Justice, a legal research and advocacy group. “By doing it wrong — the way we’re doing it now, we’re wasting tens of millions of dollars.”


In a shoebox-sized courtroom on the 19th floor of a Loop building, Judge Craig Zerbe is trying to make the system work.

Though he hears evidence and makes rulings, Zerbe is not part of the judiciary, but an employee of the Justice Department. These are civil proceedings. And in immigration court, people have no right to a lawyer; if they can’t afford one or find one to donate their time, they’re on their own.

This afternoon, most people represent themselves. And most don’t speak English. So almost every word is repeated — once by the judge or immigrant, once by an interpreter.

A Palestinian man with weary eyes sits before the judge, holding his head in his hands, and in rapid-fire Arabic he describes his plight: He has no money, no job, no work papers. He can’t see his children; it’s unclear why.

He has brought along a friend who tells Zerbe: “He’s looking for justice.”

The judge calls in a professional interpreter — who translates via phone hookup — and the man explains he has been smuggled through Spain, Mexico and other places. The U.S. government wants him out. He’s not sure what to do. Fight to stay. Or go home, he says, to Palestine. The judge points out that’s not a United Nations-recognized country. (The man’s home is on Israel’s West Bank.)

“Why don’t you want to help me?” the man says, his voice raw with despair. “Why are you so upset?”

“I’m not upset,” the judge says evenly. “I’m just trying to get a solution.”

Zerbe patiently explains that while he’s sympathetic, this isn’t the time or place to discuss family or work, just immigration.

“All I know about you is one sheet of paper,” the judge says.

Zerbe suggests the man consult a legal aid attorney before deciding. He agrees and will have another day in court.

So will a Polish couple fighting charges they overstayed their visa. “We have a lawyer for nine years who didn’t do a good job representing us,” the woman announces, dressed smartly in a black suit, standing next to husband.

Zerbe grants them a nine-month delay.

“Thank you judge,” the woman says with great relief. “Have a good day.”

A baby-faced man can’t afford a lawyer. When Zerbe asks if he thinks he can represent himself, he hesitantly says, “I’ll try.”

He faces deportation to Mexico. He hasn’t lived there since he was 2, when his parents crossed the border illegally. Now he’s 22. He was snared by authorities for twice violating a court order to stay away from an ex-girlfriend; he spent time in jail.

“Are you willing to leave the U.S. voluntarily?” Zerbe asks.

“If I have to, yes,” he replies in a near whisper, glancing back at a young woman who nervously rubs a forefinger over her mouth.

But he won’t this day. He announces he wants asylum, declaring he fears Mexico’s drug trafficking violence. Zerbe says those general conditions don’t qualify him. There’s another catch:

Applications generally have to be filed within a year of arrival — which, of course, is impractical since he was 2 at the time.

The young man gets a few months to consult a lawyer. He walks out stiffly in polished black shoes.

There’s one more asylum case. A Mongolian woman is worried her political beliefs will cause her harm if she is sent back. She says her husband was beaten in Mongolia

So why, the judge asks, through a translator, is she there, not her husband? There’s no immediate explanation.

He glances at a computer screen for a BBC timeline showing the Mongolian elections. He notes there is no State Department travel ban.

The judge tells the woman’s attorney — who says he’s studying the language — to marshal the required documents and jokes he’ll be proficient by the time he returns to present his case.

The next court date: Feb. 27, 2013.


It may be two, three years, even more (hearings are set for 2015 in Phoenix), but it’s not hard to find someone who will wait years— or already has — for a ruling in one of the nation’s 59 immigration courts.

In Los Angeles, it took five years for a Cameroon mother who was raped and beaten to win asylum. For a time, her three children in Africa didn’t know she was alive— she feared she’d jeopardize their safety if she contacted them.

In Phoenix, it was a nine-year wait for a Haitian refugee who lost his home and business after being detained because of a clerical error.

And in Chicago, a nurse from India who came here to work — leaving her young son for what she thought would be a short time — is still trying to untangle herself from red tape more than eight years later.

The courts’ backlog of nearly 268,000 cases at the end of 2010 marked a 44 percent increase in 2½ years, according to the Transactional Records Access Clearinghouse, a statistical research group at Syracuse University,

The federal agency that runs the courts — the Executive Office for Immigration Review — has responded by hiring 38 more judges — there are now 270 — and 90 others, including clerks, in the last 18 months.

In congressional testimony last year, Juan Osuna, now acting director of the office, outlined steps being taken to improve the courts, including new staff, more training and better hiring practices. The courts came under fire during the Bush administration when it was discovered some Justice Department aides were choosing judges based on their politics.

But there’s no magic wand to erase more than a quarter-million cases.

Judges handle, on average, more than 1,200 matters a year, leaving them so overwhelmed they mostly issue oral decisions “that sometimes are not fully researched or based in law or fact,” according to a 2010 report commissioned by the American Bar Association.

“You sit there, listen to a case, then there’s a five-minute break, and you render the decision,” says Dana Leigh Marks, president of the National Association of Immigration Judges. “It keeps us up at nights as judges. You worry — are you making the right decision, particularly when someone has a criminal record.”

Marks, a judge in San Francisco, likens her job to “dealing with death penalty cases in traffic court” because the stakes are so high, the resources so scarce.

What makes the work even tougher is the heat from superiors to move fast, says Bruce Einhorn, a former immigration judge in Los Angeles for 17 years.

“No one ever received any plaudits for slowing down the assembly line,” he says. “It was always push, push, push. … Whether it was intended or not, the agency’s pressure was always in favor of speed.”

Judges aren’t the only ones being squeezed.

Wytsma, now a private lawyer, says when she worked for the government during the late 1990s, she often didn’t have enough preparation time and had to appear in court without documents or case files. Once, while fighting to remove a child molester, she scrambled for days looking for missing records — and found them just in time.

Even when lawyers and judges are doing their jobs, some argue the system doesn’t work because there’s so little accountability.

Mark Metcalf, a former Miami immigration judge writing a book about the courts, says hundreds of thousands of immigrants haven’t showed up for their hearings in the past decade, and asylum seekers ordered deported rarely leave.

“There’s no rule of law,” he says. “It is in disarray.”

The Office of Immigration Customs and Enforcement, which removes people here illegally, disputes suggestions that it lets people slip through the system, saying it has fugitive teams pursuing leads of those who have absconded or disobeyed court orders,

In fiscal year 2010, almost 392,000 immigrants were deported, according to ICE. While the agency’s top priority is those who pose a danger, it “does not turn a blind eye” to those who aren’t convicted criminals and they accounted for about half those removed, according to Brian Hale, chief spokesman.

Even so, it’s a monumental task monitoring so many people.

The courts completed more than 353,000 matters — that’s how they refer to legal proceedings — in the year ending in September. That’s almost 40 percent more than a decade earlier, according to federal statistics.

Among the reasons for the spike: ICE has stepped up its enforcement. And a sweeping 1996 immigration law gave prosecutors and judges less flexibility in dealing with those here illegally.

“By making the laws more restrictive in some ways, it has made it a litigation paradise,” Marks says. “Now cases are fought much harder on legal technicalities and that slows things down.”

The average wait for a case to be resolved is longest in California — 639 days — or about 21 months, followed by Massachusetts with 615 days, according to a February report by TRAC, the Syracuse-based group.

Delays can buy time with a family or the chance to find witnesses or develop evidence; Some immigrants also cling to the hope if they hold on, the laws will change in their favor.

But long waits also are financially and emotionally draining. It’s just not the detention costs to taxpayers, but also the incalculable impact of keeping families divided, and sometimes — in asylum cases — children in jeopardy thousands of miles away.

Mamadou Balde spent three years in detention in Alabama after federal agents arrested him at his home in Georgia in 2007. He’d already left the country voluntarily after entering illegally almost a decade earlier, returning to Guinea.

He was jailed and tortured in Guinea, his lawyer says, but escaped and eventually made his way back (again illegally) to the U.S. to rejoin his wife, Dieynabou, who had also been seeking asylum.

Balde, a 53-year-old diabetic, says detention was an ordeal: He says he was denied proper medical and dental care and was unable to get a prescription for reading glasses. He lost three teeth, he says, suffered from gout, got sick from eating spoiled food and became so depressed he wanted out — even if it meant returning to Guinea.

“I was suffering a lot and not knowing what was going to happen. I didn’t want to be there anymore,” Balde says through an interpreter. “I thought I was going to die there. … I lost my self-esteem. It was almost like I was losing my mind.”

He became so desperate, “he would beg me to go home (to Guinea),” says H. Glenn Fogle, his lawyer in Atlanta, who urged him to keep fighting: “I said, ‘We can win this one.'”

And he did.

Last August, Fogle won asylum for Balde and his wife on appeal.

Balde reunited with Dieynabou and their three children. “They give me hope,” he says.


Balde’s success highlights a well-known truism of immigration court: This is no place to go it alone.

“It’s absurd to think that anybody can navigate this system without a lawyer,” says Rachel Rosenbloom, an assistant professor at Northeastern University School of Law.

Not knowing English is an enormous obstacle. So is the seemingly impossible task of an amateur from another country trying to decipher U.S. immigration law, which baffles even seasoned attorneys.

Yet, more than half those in deportation proceedings and 84 percent of those detained don’t have lawyers, according to the ABA-commissioned report.

Having one made an enormous difference to a Filipino woman in Chicago.

The woman, a legal permanent resident for nearly 20 years, was ordered removed after two petty theft convictions. She already suffered from depression, but when ICE detained her, she didn’t get her proper medication, her condition worsened and she began hearing voices, says Roth, of the National Immigrant Justice Center.

The woman appeared several times in immigration court. She told the judge she didn’t have a lawyer and couldn’t competently represent herself — and still was ordered out, Roth says.

It wasn’t until she gave up and was set to leave the country when lawyers from Roth’s group met her. They had her case reopened and won the right for her to remain. In 2009, she walked out of detention after 10 months. She met her infant granddaughter the first day.

“Our client lost her home, was separated from her family, and nearly was deported to a country she barely knew … and she was one of the lucky ones,” Roth says.

Hers is not an isolated case.

A survey of courts in Chicago, Los Angeles and New York — based on interviews and observations of proceedings — found “countless” incidents of immigrants treated in a “denigrating” way who couldn’t understand what they were being asked or told. That report, published in 2009, by the Appleseed Foundation, also found frightening instances of poor translation.

One glaring example: An immigrant testified fire trucks were called to hose down political demonstrators. The interpreter just used the word “fire” when translating — leaving the judge with the disastrous impression the immigrant was setting fires.


On Thad Gembacz’s first day as immigration judge in Los Angeles, he had 1,198 cases.

On his last day, a dozen years later, in 2008, he had 1,464.

No matter how hard he worked, he says, cases kept coming “like a flow out of a spigot. You can’t turn it off.”

Judges have burnout and stress levels on par with prison wardens, according to a survey reported in 2009 in the Georgetown Immigration Law Journal.

In anonymous comments accompanying the survey, 59 judges described the strains and identified common problems: inadequate resources, including not enough clerks and interpreters. The fear of not recognizing bogus asylum claims. The anguish of hearing real horror stories of forced sterilization, rape, beatings and torture.

Gembacz says he learned to distinguish between bona fide cases and suspicious ones — asylum seekers, for instance, who seemed to be reading a script provided by Chinese “snakeheads,” professional paid smugglers, that included almost the same words others had used weeks earlier.

There were times, though, he felt constrained by the law.

Gembacz remembers one Mexican man who crossed the border illegally more than 15 years earlier, married, had two children, spoke English, built a successful business and paid good wages to 17 employees — “someone you think you wouldn’t mind living next door to you.'”

But the man broke the law, leaving Gembacz no choice but to order the couple deported, leaving them in tears.

“It was one of those rough decisions that you really didn’t want to make,” says Gembacz, who also is a former government immigration lawyer.

“You get a switch in your mind when you walk out of the building, you have to turn it off,” he adds. “That’s very difficult to do. You’re running over testimony in your head, you’re thinking of decisions. You can’t continue to second guess and try the cases in your mind.”

Judicial decisions, though, can become the target of blistering criticism. In Chicago, for example, a federal appeals panel in 2008 condemned a judge in a Nigerian asylum case, saying it was an “absurd proposition” to suggest if the man were ordered home, he “could evade imprisonment, mistreatment and possibly death by approaching his jailers and trying to buy his way out.”

In California, the appeals court has criticized one judge several times. In one case, it said she showed “obvious bias,” badgering the person with “loaded, pejorative questions.” In another, the panel said she “did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes.” And in a third, it said her conduct “exhibits a fundamental disregard for the rights of individuals.”

Wytsma, the Los Angeles attorney, says it’s sometimes hard for judges to grasp the plight of those appearing before them.

“Judges seem to view these cases of what it’s like to live in the U.S.,” she says. “They can’t imagine leaving a child behind. They don’t understand you don’t have documents to prove you miscarried. They fail to appreciate the difference in culture. It’s sometimes surreal.”

For others, the hard part is simply getting heard.

Alla Eddine Janjary, a Moroccan, overstayed his visitor’s visa but thought he’d be able to get a green card because his wife is a U.S. citizen. They completed the paperwork, they say, and were assured it would be a smooth process.

Janjary, 25, even visited family in Morocco. Months after returning, he learned the government wanted him out.

At his first — and only — court hearing in Seattle, Janjary says the judge told him, “Everything is going to be fine. Don’t worry.”

That was in 2008. His next hearing is in November. His lawyer says his case is moving slowly because the judge considers it low priority.

It’s anything but to Janjary, an emergency medical technician whose job prospects and travel are limited without a green card. “Not being able to see my family, not being able to plan things ahead. … I have no appetite for anything,” he says. “It’s unbelievable.”

His wife, Patricia, a nurse, says she understands the court’s schedule, but is scared and frustrated.

“There are so many things we want to do, places we want to go, but we have to wait,” she says. “And the wait is really hard, since we don’t know what the results are going to be. We’re trying to do all we can to move forward and live a normal life.”


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