Immigration judges work for a tiny agency within the U.S. Department of Justice. There are just 334 of them to manage a backlog of 733,000 cases nationally. New cases are constantly coming, as demonstrated by the recent surge in migration from Central America that led to the Trump Administration's "zero tolerance" policy, which included separating children from parents.
In the spring, Attorney General Jeff Sessions announced his plan to impose a controversial quota system to make immigration judges work faster. In order to achieve a satisfactory rating, they'd need to complete 700 cases a year.
It's not known what the consequences would be for falling short of that. But their union is fighting the plan. "It just is antithetical to the idea that a judge has to make a decision case-by-case as to how much time needs to be spent," said San Francisco immigration judge Dana Leigh Marks, speaking in her role as president emeritus of the National Association of Immigration judges.
An analysis by WNYC finds judges in New York City, which has the nation's busiest immigration court, would fail to meet the case completion standard. On average, the New York immigration judges completed just 566 cases a year. But in other courts, such as Houston, judges completed more than 1,400 cases a year. The Justice Department has said that over the last five years, the average judge finished 678 cases in a year.
For our numbers, we looked at case completion rates for each immigration court published by the Executive Office for Immigration Review, which runs the courts. We relied on the agency's latest annual report from Fiscal Year 2016 (they have yet to issue data for 2017). The agency also told us how many judges were assigned to each immigration court at the end of that year.
To get an average case completion rate for the judges, we divided the number of cases in each court by the number of judges. For example, New York City's 31 judges completed 17,547 cases in fiscal year 2016, resulting in an average of 566 per judge. (It's possible not every judge in a particular immigration court was there for the whole year.)
We also only focused on the big courts with a backlog of at least 15,000 cases, so our data does not include the separate courts for immigrants in detention. These courts hear far fewer cases, but often complete them very quickly because they're located in remote areas where the immigrants rarely have access to lawyers.
In our analysis, New York was among several busy immigration courts where judges fell far short of 700 completed cases that year. Judges in Miami, Newark, San Francisco and Los Angeles also missed the mark.
But immigration judges in Dallas, Charlotte and Atlanta would have no problem getting a satisfactory rating. Those courts also have a history of denying requests for asylum much more often than the court in New York.
"The raw numbers support the conclusion that the performance quotas will favor those judges who deny a high percentage of [immigrants'] claims," said immigration lawyer Jeffrey Chase, who's also a former New York immigration judge.
The Executive Office for Immigration Review declined to comment on that allegation. But it has responded to concerns that a quota system will negatively affect due process by pressuring judges to move faster.
"There's no reason that the judges cannot be both efficient and maintain due process," said the agency's director, James McHenry, before a panel of the Senate Judiciary Committee in April. "And the suggestion that there’s some sort of trade-off or that there’s a balance, or if you have one you can’t have the other, to my mind tacitly impugns the integrity of the immigration judges, their professionalism and their capabilities."
Why Immigration Courts Vary So Much
There are many reasons why case completion rates vary among immigration judges, but one big factor is the availability of legal representation in the jurisdiction.
Unlike in criminal court, there's no guaranteed right to counsel in immigration court. But New York's immigration court has the highest rate of representation in the country. About two-thirds of immigrants had lawyers in fiscal year 2017, according to data collected by TRAC at Syracuse University.
New York City has many private immigration lawyers, but it also has many non-profits that provide free legal representation for immigrants. The city even pays for immigrants in detention to get free lawyers.
Having an attorney means the immigration judge is going to hear more evidence to rebut the government's case for deportation.
Take the case of 26-year-old asylum-seeker, Jorge. He did not want to reveal his full name because he said his mother and his sister fled El Salvador in late 2015 after gangsters killed his father and then threatened to kill him, too.
"They used the butt of the gun to hit me on the head," he said.
Jorge was represented by Rebecca Press of Central American Legal Assistance in Brooklyn. She dug up as much evidence as she could find before his court hearing. "There was a medical examiner’s report, there was a medical report from after they hit Jorge in the head with the gun," she recalled. "We obtained letters of, witness statements from certain individuals."
Jorge and his family won asylum last year.
At the immigration court in Manhattan, judges denied asylum only 17 percent of the time between 2012-2017, according to TRAC.
But it's a much different story for immigrants in other cities where lawyers aren't as plentiful. Houston Public Media explored the reasons why judges there rarely grant asylum. In Houston, less than 40 percent of immigrants had attorneys in 2017, according to TRAC, and the average asylum denial rate was 87 percent over five years.
Other Influences on Judges
Of course, judges have their own personal viewpoints. They also hear different types of cases depending on where they're situated. Sarah Burr, a retired New York immigration judge, said the people she saw in court often had strong cases.
"Because New York is further from the border we have a very high immigrant community that has been here for a long time, they have roots here," she said, with more ways to fight deportation. "They haven't just come across the border."
Judges are also influenced by the way federal circuit courts interpret immigration laws. And the circuit court in New York is much more liberal than the one in Texas. Tatiana Obando, an immigration lawyer in Houston with the non-profit group RAICES, saw the difference herself when a visiting immigration judge from New York was hearing cases in Houston.
"I walked in and the judge just asked the government attorney, 'Do you have any concern about this case?' she recalled. "She said no. And they granted my case. Just like that."
But soon Obando was brought back to reality.
"Later on I had a similar case, exactly the same circumstances, with a judge in Houston who denied my case."
The Trump Administration is finding new ways to deny asylum for immigrants. Attorney General Jeff Sessions issued a ruling this year that makes it much harder now for immigration judges to grant asylum in domestic violence cases. This is why so many advocates for immigrants believe imposing quotas on judges fits with an overall anti-immigrant agenda.
"These metrics are not being used at all in terms of measuring quality," said Bryan Johnson, an immigration lawyer on Long Island. "It’s clearly all about making the system faster and faster and faster without respect to quality."
Measuring Judges' Rulings When Challenged
The quota system isn’t just about finishing more cases. The Justice Department also plans to examine how often a judge’s rulings withstand challenges to both the Board of Immigration Appeals and a federal circuit court. To get a satisfactory rating, a judge could not be overruled (remanded) more than 15 percent of the time.
When either an immigrant or the government loses a case, they can go to the Board of Immigration Appeals. Johnson filed a Freedom of Information Act request for data on appeals to this board, which he published on his website. WNYC crunched the numbers for fiscal year 2017 to see how many judges would earn a satisfactory score, and whether the system was biased in favor of conservative judges.
It proved a tough assignment. Most judges aren't appealed that often, so even if they lost a few challenges a year they'd score well over the 15 percent target.
But when we focused on those with the most appeals, we did see a pattern. Three judges in Houston — Gary Endelman, Monique Harris and Nimmo Bhagat — had more than 300 appeals that year. Each was overruled less than 15 percent of the time, meaning they'd do well under the Trump Administration's quota system. These judges also rarely grant asylum.
Johnson suspects the Trump administration will use remand rates in the quota system to punish liberal judges. "You can engineer these statistics very easily," he said.
But some liberal judges in New York weren't overruled very often by the Board and would get a good rating.
WNYC asked for details on how the rates would be calculated but the Justice Department declined to provide any.
Immigration Courts as Political Tools
The immigration courts have been accused of being political tools before. When George W. Bush was president, Attorney General John Ashcroft eliminated judges who sat on the Board of Immigration Appeals. Lory Rosenberg was one of them at the time.
"He can by his own decree, basically without any congressional oversight, change what’s going on," she said, of the attorney general.
Back then, critics called this a purge. But Ashcroft’s spokesman said the board was reduced as part of a streamlining plan to increase efficiency.
Michael Neifach was a principal legal advisor to Immigration and Customs Enforcement toward the end of the Bush administration. With a backlog of more than 700,000 cases in the immigration courts, he said he could sympathize with the desire to push some judges to move faster.
"But I’m afraid that it’s going to swallow up those who are actually diligently working," he said, of the quota system.
That’s why Neifack and others say the best way to make judges more efficient while ensuring due process is to hire more of them. The Department of Justice is planning to boost their number to 500 in the coming years. But the union that represents the judges said it would need at least 1000 more to eliminate the backlog.
With reporting from Elizabeth Trovall and Alvaro ‘Al’ Ortiz and digital assistance from Matt Prendergast at Houston Public Media.