'You Can't Have It Both Ways': Sen. Padilla Slams Budget Cuts to Immigration Courts

When the Biden administration opened a new immigration court in the Bay Area city of Concord last month, it was part of a broader effort to cope with an unprecedented nationwide backlog of 3.3 million cases.

But a spending deal reached in Congress last week to avert a government shutdown cuts the budget for the federal immigration courts, even though President Joe Biden had asked for a major spending increase.

California Sen. Alex Padilla said the reduction, pushed by Republican leaders in the House of Representatives, is a mistake if they care about managing migration at the border.

“My message to them is: You can’t have it both ways,” he said. “We can’t say we’re trying to reduce the backlog for asylum applications or anything else … if we’re trying to cut the capacity of the same departments and agencies that are charged with securing the border and enforcing our laws.”

House Republicans said the appropriations package, signed by Biden late Friday evening, reined in federal spending (PDF) and “put an end to budgetary waste.” In particular, they touted a provision “requiring the DOJ to hold Immigration Judges accountable by implementing a performance appraisal system.”

Faced with a growing number of asylum claims at the U.S.-Mexico border compounding an existing backlog of deportation cases, Biden had asked Congress to commit $1.45 billion (PDF) to the court system, known as the Executive Office of Immigration Review. That reflected a 70% increase over last year’s budget of $860 million. Instead, funding was trimmed to $844 million.

Since Biden was elected, EOIR, which is part of the U.S. Department of Justice, has added six new immigration courts (PDF) and more than 300 judges (PDF) across the country, building on an expansion that began as immigration enforcement ballooned under the Trump administration.

The new Concord court is slated to have 21 new judges, nearly doubling the capacity in the Bay Area to hear deportation cases, including asylum claims. Until now, the 27 judges in San Francisco’s court, with help from a smaller court in Sacramento, have handled all immigration cases from Bakersfield, California, to the Oregon border. With 160,000 pending cases, each case takes more than three and a half years to complete, on average.

Even though caseloads have grown, the nation’s 734 immigration judges are closing nearly a third more cases on average than at the end of the Obama years, according to a data analysis by the Transactional Records Access Clearinghouse at Syracuse University. But the judges’ speed is outmatched by the raw numbers of new migrants applying for asylum.

Analysts with the Congressional Research Service found last year that the number of judges nationally would need to double, and it would still take eight years to clear the backlog.

Retired San Francisco immigration judge Dana Leigh Marks said each judge also needs a courtroom, legal and administrative staff support, language interpreters and functioning computer systems. And staffing up can take months. Yet the new budget cuts to the bone, she said, at a time when the credibility of the nation’s immigration system is at stake.

“EOIR is desperately undersized and underfunded. So every penny counts,” said Marks, who is president emerita of the National Association of Immigration Judges. “It really is a travesty that there’s all this focus on the border and the backlog in the immigration court system. And yet the major solution is simply giving adequate funding.”

In addition, she said delays can hurt an asylum seeker’s chances of winning permanent protection in the U.S., even as they’ve put down roots here and may be valued members of their communities.

“You’ve got cases that have been pending for five, six, seven years,” Marks said. “Their asylum case may no longer be viable … They may be hampered by the ability to obtain evidence because so much time has passed. So, from a legal perspective, their case is not one which could be granted. But it doesn’t mean that they are someone who necessarily should be forced to leave.”