BOB GARFIELD: This is On the Media. I’m Bob Garfield.
On Tuesday, the Justice Department announced new numbers around its immigration crackdown.
FEMALE CORRESPONDENT: Federal officials ordered more than 57,000 people to leave the US from February to June this year.
BOB GARFIELD: That’s an increase of 31 percent over the same period last year.
MALE CORRESPONDENT: At the same time, those allowed to stay in the US declined 21 percent.
BOB GARFIELD: And yet, despite the extensive coverage of Trump’s policies and statements on immigration, there is remarkably little coverage from inside immigration courtrooms. Those courts are supposed to be open to the public and the press, but does it work out that way?
JULIA PRESTON: Very often, it does not.
BOB GARFIELD: Julia Preston is a journalist who's been reporting on immigration issues for more than 10 years, at the Washington Post, New York Times and now, for the non-profit, Marshall Project.
JULIA PRESTON: In general, the courts are very capricious in terms of what kinds of access they will allow. For example, an asylum hearing is supposed to be open to the press, unless the judge or the parties decide that they want to close it. But, in practice, very often it works the other way. It's very common for a reporter to go into an asylum hearing with the permission of the immigrant, of the attorney and be dressed down and scolded by the judge, just to be able to sit in the court.
BOB GARFIELD: There are records of the proceedings but not the sort we’re accustomed to by watching legal procedurals [LAUGHS] on TV. It seems like quite a rudimentary system, not even a court reporter. The judge actually operates a recording machine.
JULIA PRESTON: Yes, that's right. And we had an experience at The New York Times when I was working there a few years ago where an immigration judge issued a very important decision in a human rights case. This was a case where a former defense minister from El Salvador was being prosecuted for deportation based on human rights violations, and the judge ruled against him, and the decision, which was more than 100 pages long, was a very important decision for other courts to know how to interpret the statute in question, which was a relatively new law at that time. And we had to actually litigate to get the court system to publish a precedential ruling by a federal judge [LAUGHS].
BOB GARFIELD: So you had a victory in that case. You got a hold of this 100-page decision. Has it had any ramifications for subsequent reporters trying to get hold of subsequent decisions or any documents out of the immigration court?
JULIA PRESTON: Well, we did have a major victory but whether or not it helped the process in general or encouraged the court system to be more open is not clear to me at all. Today, The Times is still trying to get additional records from those cases, and so, it really is a big struggle.
BOB GARFIELD: Is there any way for a reporter or any third party to find out what cases are being reviewed, where and when?
JULIA PRESTON: Well, this is an example of how inconsistent this is. If you go into an immigration court, posted on the wall of the court are the names of all the people who have hearings that day in court, but if you try to, from a distance, find out about that [LAUGHS] docket, it's very difficult. The kind of docket, for example, the PACER system that you have in other federal courts where you can just type in a case number or a name and the entire case history will come up, none of that exists in the immigration courts.
BOB GARFIELD: Do people disappear within?
JULIA PRESTON: They do sometimes because ICE is responsible for maintaining the list of current detainees and, in some cases, ICE is not careful about maintaining those records on a daily basis. And if you're an immigrant who’s in detention and your name disappears from the current list of people who are detained, very often that means that that person has been deported. So if that person has not been deported and the name is not showing up on the list, this can be very traumatic and difficult for the family.
BOB GARFIELD: How about anonymized data about what kind of cases are being heard and how many, do you know how big the network is?
JULIA PRESTON: The immigration court system put out figures showing significant increases in the number of judicial decisions that led to deportations in the first six months of the Trump administration, but the figures were presented in such a confusing way that it really was very difficult to tell what exactly they were talking about, and they didn't offer any figures for cases that were resolved and the immigrants got to stay in the United States. In some ways, the data is even more tendentiously presented than it was under the last administration, which, in my mind, doesn't get any particular kudos for transparency, either.
BOB GARFIELD: Is there a case that is representative of the larger problems of trying to penetrate the secrecy in the bureaucracy of the immigration enforcement?
JULIA PRESTON: I just did a lot of reporting in the immigration court in Charlotte, North Carolina, and the judges in that court have traditionally had a very low grant rate of asylum claims. So you have people who are going before that court who are really frightened and have no confidence that their cases will be fairly heard in those courts, so the end result of this was that the great majority of the cases that I was looking at, which had to do was families from Central America, those cases were ending in deportation orders issued in absentia. People had so little confidence that, in the end, a lot of people were just not turning up in court.
BOB GARFIELD: Do you have difficulty generating sympathy for the personal issues of deportation? Are you a lonely voice there at the Marshall Project or do you have a kind of constituency?
JULIA PRESTON: I find that people are becoming a little bit numb to these cases, particularly the deportation cases. Many Americans are troubled by the fact that in their mind these people did not go the right way or didn't follow the legal route, and it's very difficult for Americans to understand that there is no legal route for a lot of these people and what's happening in the immigration courts is part of that process. Whenever I do a story about a deportation, I try and get people to visualize what does it mean to be deported from the United States? You're there with your family, you have a home, a lot of these folks have been here for many years. And all of a sudden, from one day to another it's like a living nightmare. You're in your home, your environment, and all of a sudden you're in a country that, in many cases, you haven't lived in for years and years. It's just such a trauma and so disruptive and so painful for so many people. And so, I do always try and make that point when I talk about these cases.
BOB GARFIELD: Julia, many thanks.
JULIA PRESTON: Thank you.
BOB GARFIELD: Julia Preston is a journalist writing about immigration issues for the Marshall Project. Many thanks also to Jacqueline Stevens, director of the Northwestern Deportation Research Clinic, for bringing this issue to our attention.
As we just heard, the immigration court bears little resemblance to any court system we’re familiar with. There is no bailiff, no court reporter and the judges preserve a record by, themselves, operating a digital audio recorder.
JUDGE DANA LEIGH MARKS: I often compare myself to the guy behind the curtain in the Wizard of Oz because there are so many things that I am responsible for in the courtroom.
BOB GARFIELD: Judge Dana Leigh Marks is one of 330 federal immigration judges. Ordinarily, they are not permitted to speak to the media but she can, in her capacity as president of the National Association of Immigration Judges.
JUDGE MARKS: There are a lot of the same formalities in immigration court as you expect to see in other courtrooms, but with these glaring differences in resources.
BOB GARFIELD: And a consequent crisis in the pace of adjudication.
MALE CORRESPONDENT: They’re now stuck in a huge backlog of cases before US immigration court, a backlog that keeps growing, with thousands of cases being delayed, in some cases, by nearly five years.
FEMALE CORRESPONDENT: But you also have a backlog of more than a half million cases, more than ever.
BOB GARFIELD: Some of the immigrants who are currently detained aren’t scheduled to have their hearings until after President Trump’s current term is finished. And Judge Marks says the backlog has been years in the making.
JUDGE MARKS: Well, we have had problems with backlog going back to the days when Alberto Gonzales was the attorney general
BOB GARFIELD: Under George W. Bush.
JUDGE MARKS: Right, and he did a study of the courts where he recommended immediately adding 40 new immigration judges. But we were subjected to the government-wide hiring freeze and did not get those 40 additional judges for another four or five years, I believe it was.
What has also happened is the complexity of cases continue to rise over time. The law and the judicial interpretations have only gotten more complicated. And unless the money is allocated promptly to hire more judges and to give us the resources we need, like judicial law clerks, that's kind of what's gotten us in this situation.
BOB GARFIELD: You’re a judge in an immigration court but you aren’t really part of the judiciary, right? You work for the attorney general?
JUDGE MARKS: That’s correct. We are administrative judges, which means we are attorneys appointed by the attorney general to serve as judges.
BOB GARFIELD: Now, you and your colleagues do everything they can to be independent, impartial arbiters of immigration law, but your bosses are not necessarily so immune from politics and policy. Does that create a conflict for the judges within their own organizations?
JUDGE MARKS: We have long held that we need to be taken out of the Department of Justice to assure that our neutral adjudication is not intentionally or even unintentionally impacted by political considerations. The current administration, in deciding to detain everyone, detained cases always have a priority in our system because, obviously, it's an adverse impact on the liberty interest of the individual who's being held but it also costs a lot of money to taxpayers. But when the administration chooses to detain virtually any noncitizen that they encounter, rather than detaining people who are serious risks to the community because of past criminal records, or whatever, what happens is that the judges are then forced to deal with those cases quickly and put those first on the list, meanwhile pushing back other cases that have been pending for perhaps two, three, four, even five years.
BOB GARFIELD: If you are in the system, do you have the same protections that a defendant in a criminal or even civil case would have in an ordinary court?
JUDGE MARKS: No. I often say that we do death penalty cases in a traffic court setting. The consequences to the individuals who come before us in immigration court can be life or death or, even if someone is not fearing that they’d be persecuted if they’re returned to their homeland, it may be that they've lived in the United States for all of their life, as long as they can remember, and so, sending them out of the United States with a deportation order is the equivalent of exile or banishment. And yet, because these are considered civil proceedings, not criminal proceedings, individuals are not entitled to have an attorney appointed for them. They can have an attorney represent them but it's got to be at no expense to the government. Forty percent of the people who appear before us do not have attorneys representing them, overall, but when you look only at cases where individuals are held in immigration custody and are detained, then you see that only 15 percent of individuals have attorneys to represent them. And it can make a huge difference in the outcome of their cases.
BOB GARFIELD: Many of those who come before the court, maybe predictably, don't speak English as a first language and, therefore, face the complications of translation.
JUDGE MARKS: Mm-hmm. [AFFIRMATIVE]
BOB GARFIELD: Are they provided assistance by the immigration court?
JUDGE MARKS: People are provided foreign language interpreters, if English is not their best language. I think last year it was over 280 different languages that were used in the immigration court proceedings. But it still is extremely challenging for individuals because they're not testifying in their first language and, depending on the quality of the interpretation, the ability to have an interpreter appear in person, at times they’re only provided telephonically, some of our proceedings take place over tele-video, all of those factors really impact the effectiveness of someone's testimony. And often, the burden of proof resides with the respondent appearing in court and, if that individual is unrepresented, then, obviously, it's very difficult for them to know if the translation is accurate, if they're able to express themselves completely, if some kind of cultural assumption is making the effect of their testimony less strong.
BOB GARFIELD: All right, just in case that slipped by unnoticed, you observed that the burden of proof, unlike criminal cases, is not on the prosecution but on the respondent, sometimes to prove a negative.
JUDGE MARKS: Where the burden of proof issue lands on the respondent himself or herself is when somebody is applying for some kind of relief from removal. They admit that they are not natives and citizens of the United States but under the complicated immigration law they believe there is a status they can qualify for, some kind of benefit that would allow them to remain legally in the United States. And, in those cases, that's probably 98 percent of the cases we have before us, the focus is on the remedy and the relief that someone might be able to get, not the fact that they are removable or not removable from the United States. One Ninth Circuit judge very succinctly put it that refugees don't come with a note from their dictator.
BOB GARFIELD: I'm sure this is not an adjective that you have not heard before but it all sounds kind of Kafkaesque to me. Let's just say that in addition to being president of the National Association of Immigration Judges that you are the best immigration judge, nobody more knowledgeable of the law, nobody fairer or nobody more impartial, would you want to be in the position of appearing before you?
JUDGE MARKS: It is clear that individuals appearing before immigration judges are often traumatized. I think, frankly, having been in this field for the 30 years that I have, it's clear that even if someone were an economic migrant, the atrocities they can suffer on route to the United States can be traumatic. So it, of course, would be optimal for every person appearing before an immigration judge to have access to a lawyer.
The American public has to inform Congress as to whether they feel that is the way the law should be amended because there are legitimate policy differences amongst people in the American public as to whether or not that is an appropriate and legitimate expense.
BOB GARFIELD: Judge Marks, thank you very much.
JUDGE MARKS: Thank you.
BOB GARFIELD: Judge Dana Leigh Marks is president of the National Association of Immigration Judges.