Immigration Judge Considers Consequences Of New Enforcement Rules

NPR's Audie Cornish talks with Dana Leigh Marks, president of the National Association of Immigration Judges, about the new immigration enforcement guidelines from the Department of Homeland Security.

AUDIE CORNISH, HOST:

The new immigration enforcement rules outlined by the Department of Homeland Security this week would greatly expand the number of people who can be targeted for deportation, and that could mean a big increase in the workload for immigration courts. Those courts are already dealing with a backlog of hundreds of thousands of cases and years-long delays.

Now here to talk about how the new guidelines might affect things is Dana Leigh Marks. She's an immigration judge, and she's the president of the National Association of Immigration Judges. Welcome to the program.

DANA LEIGH MARKS: Thank you so much for having me.

CORNISH: Now, given your position as head of the National Association of Immigration Judges, do you think the court system is prepared to handle more cases?

MARKS: We are very overwhelmed and under-resourced at the present time. We are struggling with a caseload of over 540,000 pending cases with only a few more than 300 judges on staff now to handle those. So those are huge caseload numbers, and we need additional resources to handle what we have before us now, let alone any increase in the number of cases that we get.

CORNISH: Is it possible to surge the deployment of new judges as the Department of Homeland Security is calling for?

MARKS: We have not been advised as of yet as to whether or not the immigration judges are going to be exempt from the federal workforce hiring freeze that the president's executive order put into place. It is possible I guess to take judges from existing locations and have them serve at border courts if those border courts are established and are up and running.

CORNISH: Would you fall under the exemption for national security hires?

MARKS: It is required that the head of the agency make that determination. And it's obviously quite possible that we will, but we have not been told that that is in effect now. Currently the Department of Justice is authorized to hire up to 374 immigration judges nationwide. So we're roughly 70 judges short of that at this time, and we don't know if that hiring process will continue to be ongoing.

CORNISH: You know, in the new rules, the secretary of Homeland Security does offer a kind of strategy to ease some of the backlog, and that's expanding the use of expedited removal. So for example, immigration officers could deport people without a hearing before an immigration judge. This used to be applied to people within, like, a hundred miles of the border who had been in the country for less than two weeks, and now it could be applied to people here for up to two years. Now, is that something that would actually ease the burden on the immigration courts - if people were just moved out of the country quicker?

MARKS: If expedited removal were to be expanded, it is true that there would be less of those cases coming to the court because the whole purpose of expedited removal is to bypass the court. However, there have been serious criticisms of the expedited removal process from many individuals and organizations, including the United States Commission on International Religious Freedom. So since expanding expedited removal would require a change in the governing regulations, it still is not clear if that change would be able to be implemented since there has to be a notice and comment period to the public in order to accomplish that change.

CORNISH: It sounds like this is a legal way of saying there are questions about due process.

MARKS: That is correct.

CORNISH: And is there enough case law there for us to know what those questions might be?

MARKS: There's the issue of whether the due process clause which does apply to non-citizens and citizens alike would require a more formal hearing in order to determine people's rights. And it would seem likely that there would be lawsuits about any change to the expedited removal process.

CORNISH: In the meantime, in your capacity as head of this association, have you heard from any judges in recent weeks now that these orders have come out, even anonymously?

MARKS: (Laughter) I take the Fifth.

CORNISH: (Laughter) OK.

(LAUGHTER)

CORNISH: Dana Leigh Marks - she's speaking to us as president of the National Association of Immigration Judges. Thank you so much.

MARKS: Thank you very much.

(SOUNDBITE OF CHRIS THILE AND BRAD MEHIDAU SONG, "INDEPENDENCE DAY")

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