The immigration court backlog is ridiculous and we need comprehensive immigration reform now

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved. ”

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved. ”

Who is affected and irritated by a backlogged immigration court system? The answer is, everyone involved with the process. From judges and clerks to lawyers and their immigrant clients, the people who work in immigration and the public they serve, the demand for comprehensive immigration reform is strong. The number of immigrants and cases in the system continues increasing. In a recent article on backlogged courts, an immigration judge commented, “In my thirty-one years as a United States immigration judge, I have never had as many people come through my courtroom as I have over the last six years. During this time, there has been a dramatic increase in the number of non-citizens that the United States detains and deports, and the detained number of individuals appearing in immigration courts today is unprecedented.[i]

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved.[ii]

Meanwhile, the comprehensive immigration reform bill, S.744, which is held up in the House by GOP leaders who fail to take action, would significantly improve the situation if it becomes law. In a recent article focused on fixing the immigration court backlog, CIR would, “Increase the number of immigration judges and court personnel, as well s the number of staff attorneys at the Board of Immigration Appeals.[iii]” It is important to note that despite the average number of days it currently takes to process an immigration case is just under 600 days, in large cities like Chicago, with large immigrant populations, the process can take up to three years!

In 2011, when the immigration backlog was critical then, the Department of Homeland Security announced the Prosecutorial Discretion Policy (read more here) to focus on the detention and removal of serious criminals and threats to national security. Despite the Prosecutorial Discretion policy, immigrants are being arrested and are now in the lumbering immigration system.

The people coming into the immigration system, in many cases, are individuals who have lived in the U.S. for many years and are able members of our communities. One individual who became part of the system one day is Lundy Khoy, who when she was one year old, came to the U.S. with her family as refugees from genocide in Cambodia. At 19, in college, Lundy was arrested, charged and convicted for possessing the drug, Ecstasy. She served three months and was released for good behavior and put on probation. Towards the end of her probation, at a regularly scheduled meeting with her probation officer, Lundy was arrested and detained by Immigration and Customs Enforcement (“ICE”) officers who detained her in prison for almost 9 months.

Many would agree that Lundy Khoy is not a threat to public safety, but now she is part of the system.

People like Lundy Khoy are being arrested in detained by ICE in increased number, in part to policies arranged in the past few years allowing information sharing among law enforcement and ICE who learn of undocumented immigrants and arrest and detain them. As a result, people otherwise “off the radar” are now among those who recently entered the U.S. and were likely stopped at borders. The administration simply cannot keep up with the number of cases and people in the immigration court system.

The problem judges face is simply not being able to spend enough time with any individual person before them in court to make a proper determination whether they should be allowed to remain in the U.S. or be deported. Additionally, many of the immigrants appearing in court cannot afford and do not have lawyers, and there is no right to an appointed lawyer in immigration courts. The large surge in unaccompanied children coming into the U.S. from Central and Latin America do not have attorneys and are functionally clueless about our immigration system and laws.

If you want to learn more about immigration options and how to proceed through the complex and backlogged immigration system, please contact our law firm to request more information.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] The Hill: Time to fix our immigration courts, by John Gossart Jr., Feb. 26, 2014

[ii] See Gossart article above at para. 7.

[iii] National Immigrant Justice Center: Rethink Immigration: It’s time to fix the immigration court backlog, by Ashley Huebner, Apr. 26, 2013.

Prosecutorial Discretion in Immigration Enforcement

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

A recent article in the L.A. Times highlighted a reported rise in the use of prosecutorial discretion in United States immigration system. There are many undocumented immigrants in the U.S., many of whom want nothing more than to reside in the U.S. legally in hope of eventually obtaining U.S. citizenship. ICE officers and their departments are under a directive to prioritize whom they prosecute under the current immigration laws for removal.  They are expected to target those with criminal backgrounds and those whom they otherwise believe pose a threat to national security.

The article on prosecutorial discretion suggests that, “Immigrants facing deportation are increasingly likely to have their cases dismissed because of mitigating factors such as having U.S. citizen children, according to an analysis by researchers at Syracuse University.”[i]  In reality, the use of prosecutorial discretion varies widely between jurisdictions and is often up to the attorney assigned to the case at that particular time by the Office of Chief Counsel for DSH/ICE.

Prosecutorial discretion in immigration means ICE should focus on national security and public safety.

In 2011, the director of ICE, Mr. John Morton, issued a memorandum directing that immigration officials review a few factors before making the decision to prosecute the individual and seek a removal order from the very busy immigration courts. Factors for consideration include how many years the person has been living in the U.S., how and when they arrived in the U.S. (as a child 10 years ago?), whether their family members served in the military, and also the person’s relationship to other family members who are U.S. citizens[ii].

The 2011 orders sent to ICE field office directors, special agents in charge and chief counsel focus on the civil immigration enforcement priorities. The memo states in its “Background” section that, “ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

If an undocumented immigrant is arrested and detained on suspicion of being a threat to public safety, as ICE memorandums describe, an attorney can intervene and work to negotiate a release or dismissal of pending charges, as suggested in the Los Angeles Times article suggesting more frequently, ICE is using prosecutorial discretion and letting people go about their lives.  If you want to learn more about prosecutorial discretion or believe someone you know if being improperly detained and prosecuted you can call attorney KiKi M. Mosley to find out what options might be available to help.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Los Angeles Times: Prosecutorial discretion on the rise in immigration courts. By Cindy Chang. Jan. 15, 2014

[ii] U.S. Immigration and Customs Enforcement. Prosecutorial Discretion Memorandum. By John Morton, June 17, 2011.