Case number 589, one of 85 cases listed on the July 31, 2018 docket for Immigration Court Judge Elizabeth Lang, came to a sudden halt as she sat staring at her computer. The pained look on her face signaled no success from her searching.
“My docket is full right now,” the Chicago immigration court judge said apologetically before scheduling the elderly Iraqi family’s next and final hearing for exactly four years later to the day.
Without an Arabic translator on hand, the frail, elderly Iraqi woman didn’t comprehend the fate that had just been handed her and her 80-year-old husband, who was not in court receiving treatment for a brain tumor.
Standing outside the small courtroom inside a drab, nondescript building in downtown Chicago, attorney Alexander Michael quickly explained the significance of the unusually long delay — a fact of life nowadays in the city and other federal immigration courts. Turning away, he added his own concern.
“You never know what’s going to happen four years from now,” he said.
It is almost as if there were two clocks in a system badly strained by a record backlog of cases, a fact faced daily by immigrants — most of whom are Latino — who anxiously jam the court’s waiting room at the start of each weekday. Whole families with toddlers, nursing mothers, sunburnt young men in jeans and T-shirts dressed for their blue-collar jobs, recent arrivals seemingly baffled by the process, and others long-snared in the court’s backlog, sit silently with their faces frozen with anxiety.
One clock ticks exceptionally quickly while the other drags on painfully slowly.
The fast one is for immigrant families that arrived in the last year, the targets of the Trump administration’s fury about the nation’s southern border, and is supposedly set to end for each case within a year. The slow one is for nearly everyone else, immigrants who have been waiting their turn, sometimes for years. But now, they may have to wait as long as four more years for their day in Chicago’s immigration court, where the backlog has nearly doubled since 2015.
That day in court is obviously no small matter. It can mean the right to stay in the U.S. or go home, which for some can be a death sentence.
This so-called “rocket docket” for recent arrivals was set up by federal officials last November in Chicago and nine other locations. Since then, these cases have been churning towards completion or final hearings within six months or less, say attorneys and legal advocacy groups. In comparison, it took 799 days on average for a case to come to court in Chicago as of last month, according to figures from the Transactional Records Access Clearinghouse at Syracuse University.
The backlog of cases nationally has soared under the Trump administration. There were more than one million cases nationally piled up as of August, a 93% increase from 2016, TRAC figures show. That doesn’t include another 300,000 low-priority cases that the Trump administration has vowed to add to the courts. These cases had been considered in limbo during the Obama administration.
Another good measure of this expanding backlog is the caseloads for immigration court judges, a number that reached an average of 4,054 for the court’s judges in Chicago in April, according to TRAC figures. That’s more than the 2,954 average for the 25 largest immigration courts, but nothing compared to Dallas where the average caseload was 6,900.
“It’s like retribution”
The speed-up has met with a raft of complaints from attorneys, who say it denies immigrants justice. They explain that it doesn’t allow them time to gather evidence, reach witnesses or gain critical information from the immigrants’ home countries. Almost as importantly, the speed-up doesn’t allow recently arrived immigrants time to overcome the trauma that sent them fleeing to the U.S. in the first place, according to Chicago attorney Victor Aparicio.
That became clear to him recently when he was preparing a Central American family for a final court hearing within five months of their arrival. A final hearing is the last chance for most immigrants to make their cases for staying in the U.S. And as Aparicio was going over the family’s upcoming testimony, their teenage daughter balked.
“She didn’t want to remember what happened,” he explained, speaking between hearings for different cases at the downtown Chicago court two months ago. Then, recounting the details of what the family had suffered threw her into an emotional crisis and she attempted suicide, he said. Citing the family’s dilemma, Aparicio was able to convince the court to postpone the hearing. They were given a five-month extension.
Even more brutal for immigrants who do not speak English, the speed-up doesn’t allow them to grasp the system’s legal complexities or find an attorney. One by one, families sat before Immigration Court judge Patrick McKenna recently at the downtown Chicago court, telling him in a few soft-spoken words in Spanish that they couldn’t find an attorney. He urged them to try again to find attorneys who provide free or low-cost service. That reality barely exists today locally, say already overburdened attorneys and legal groups.
The longer delays for cases create problems for pro bono and other lawyers, who fear taking such cases because they don’t know what they will be doing in four years, said Erin Cobb, chair of the Chicago chapter of the American Immigration Lawyers Association.
In fact, before rocket docket cases flooded the Chicago court, many immigrants’ requests for free legal help was already coming up dry. “When we have capacity, we strive to take cases, [but] we take one out of 50. We see so many people,” Hena Mansori, managing attorney of the Chicago-based National Immigrant Justice Center’s Adult Detention Project, said earlier this year.
“We’d actually argue there aren’t enough affordable [not necessarily pro bono] attorneys able to represent individuals, who often are very low-income and will have cases that may last for multiple years,” said Tara Tidwell Cullen, spokesperson for the National Immigrant Justice Center.
While the government says the speed-up is meant to efficiently deal with the new arrivals, rather than let them linger, others see a different purpose.
“It is like retribution. They [the government] are going so fast that they [the immigrants] cannot get a lawyer and they will lose their cases,” said Jeffrey Chase, a former immigration court judge in New York City and senior legal immigration adviser for the Bureau of Immigration Appeals. “At the same time that they [the government] are speeding them up, they are changing the laws, so you need more time,” he added.
The government’s figures show the impact of the “rocket docket” on immigrants. Out of 18,902 cases involving immigrant families that were completed between September 2018 and August 2, 2019, only 172 families came away victorious. In Chicago, only eight of 1,857 were won by immigrants.
In a memo last November detailing procedures for the rocket docket cases, the government said the speed-up would not cause delays, said Laura Lynch, an attorney and policy expert for the American Immigration Lawyers Association in Washington, D.C. But she said the opposite is true. The “reshuffling of dockets” has led to postponing cases “for many years” in courts across the U.S. that “were ready to be heard.”
Replying to the criticism, the Executive Office for Immigration Review issued a statement to the Reporter by email, saying that its efforts to “strengthen and improve the functioning” of the courts are “showing results.” It pointed to the greater number of cases completed in fiscal 2019 as compared to fiscal years 2012 through 2017.
“EOIR remains committed to ensuring that all who come before its courts will receive due process and a timely, fair adjudication, the outcome of which is based on the law,” the statement read.
But the agency was not able to immediately provide information about the hearing times for the “rocket docket” and other cases in Chicago.
Non-existent court dates
On top of dealing with the flood of cases, old and new, another problem has come up, compounding what some describe as the chaos of an overloaded court system.
It involves the notices that the U.S. Immigration and Customs Enforcement agency sends out to immigrants to tell them they have a court date. The problem, attorneys said, is that Notices to Appear have been sent to the wrong addresses, have no date or time, or do not have a court date that’s linked to an actual hearing.
If an immigrant doesn’t appear in court on the date of the NTA, a judge can order them deported.
“They were making updates at some point,” said Chase, the former immigration court judge in New York City, who now works as an attorney in the courts there. “For a while, the courts were told not to accept the defective NTAs and then the courts were told from high up to keep accepting the defective ones,” he added.
Thinking they had a court date, some immigrants have traveled miles, taken off from work, and taken their children out of school so they could show up for a court date that didn’t exist, attorneys say.
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In July, attorneys filed a lawsuit on behalf of four legal service organizations in federal court for the Southern District of New York, saying the rocket dockets have caused chaos for immigrants. They claimed that wrongly addressed court notices had led to the in absentia sentencing and deportation of large numbers of immigrants. But the government challenged the lawsuit, and a federal judge dismissed the case.
Whether the problem has been resolved is unclear. Some attorneys suggest that the defective NTAs continue to show up because so many were issued and the agency is struggling to catch up.
Nicole Alberico, a spokesperson in Chicago for Immigration and Customs Enforcement, said the federal agency has been coordinating its notices since January with the courts. Before, ICE had been sending out the notices with open-ended dates, something she likened to when police issue traffic tickets.
Ashley Huebner, associate director of legal services at the Chicago-based National Immigrant Justice Center, has seen no change, however, in the tide of faulty notices in Chicago’s immigration court.
“ICE continues to issue blatantly defective NTAs, and we are regularly seeing court dates on NTAs that come and go without actually being scheduled with the court. ICE must know they are defective because they know how the system works as well as we do,” she said.
Whatever the situation, attorneys in Chicago have been leaning on a recent 7th Circuit Court ruling to challenge the defective NTAs. Indeed, the immigration court’s latest figures for the 10 courts with rocket dockets showed that Chicago’s judges terminated or set aside many more cases than any court, accounting for 63% of all terminations.
That was the recent situation for attorney Maria Isabel Martinez, who cited the ruling that led a judge to promptly terminate a case. That is, drop the charges that could lead to deportation. The exchange between the judge and lawyer went so fast her client didn’t seem to realize what happened until she explained.
Theoretically, that termination means the immigrant faces no charges until the Department of Homeland Security refiles a correct NTA. Attorney Aparicio said he had only one case where DHS had refiled the charges as of late July and that baffled him. “What they are trying to avoid is what they are creating … Now, you have people without any lawful status and without any proceedings.”
But the situation has changed since then, he said this week. “They are following up,” he explained, adding that the government has filed new charges in about 50% of his cases.
Many of attorney Mohammad Ibrahim’s clients are those who suffer from the other problem: the slow ticking clock. They are the ones who find their cases shuffled further along as judges’ caseloads swell. In a hallway outside of Chicago’s immigration court, he recently detailed the delayed hearings and distraught clients who blame him for their lengthened wait.
“They get frustrated and some of them, they wait too long and so they go back [home]” he said. They either self-deport or voluntarily repatriate.
A few days earlier last July he was checking on the court date for an Iraqi family that had come to the U.S. in 2013. They had waited four years for a hearing with the U.S. Immigration and Citizenship Service, which then turned over their case to the immigration court. They were slated to have a final hearing next month, but to Ibrahim’s surprise and dismay, their case was bumped, and no new court date has been set. He expects them to wind up with an added three-year wait.
Their wait has not been easy, he explained.
The father is a banker who was wanted by a militia in Iraq. Amid the threats and violence, they fled to the U.S. But employers have been reluctant to hire either the husband or wife while their future is unclear, so they get by on whatever jobs they can find. Their children cannot apply for college loans, likewise, because of their legal status.
Ibrahim, 32, a short, hefty man with an accent that echoes his Iraqi origins, can relate to the lives of his clients. He himself left Iraq after attacks against him by Al Qaeda and ISIS. His home in Tikrit was destroyed by extremists. He had spoken out against the groups and worked for the U.S. in Iraq. He came to the U.S. as a student in 2014, finished law school and began serving clients in immigration court. He is not yet a citizen.
“I can understand very well. I know how they feel.”