HARLINGEN, Texas (Border Report) — The border city of Laredo, Texas, is getting its first-ever set of immigration courts and judges to help tackle an ever-rising backlog, a South Texas congressman said Wednesday.

U.S. Rep. Henry Cuellar, a Democrat who serves as vice-chairman of the House Appropriations Subcommittee on Homeland Security, Cuellar announced the approval of the addition of eight immigration judges to Laredo, Texas, and the establishment of the first-ever immigration courts there. The funding for these judges have already cleared all legislative hurdles, Cuellar said, adding that the General Services Administration is looking for court space and expected to get the judges on the ground by summer 2021.

“This is significant because like we have judges in the Valley and El Paso and San Antonio, now we’ll have judges in Laredo,” Cuellar said during a call with media on Wednesday afternoon. “Laredo is the only area on the border that had no immigration judges.”

Cuellar also announced that an additional 100 U.S. immigration judges could be added nationwide in fiscal 2021 to help eliminate a backlog of over 1.2 million immigration cases, which is increasing daily due to the COVID-19 pandemic, he said.

Cuellar said Wednesday that he was able to inject language into the fiscal 2021 budget bill that would add the judges. The measure would fund the Executive Office for Immigration Review, which oversees U.S. immigration courts, at $734 million, which is an increase of $61 million from FY 2020. The budget bill has passed the full House but still must pass the Senate and be signed by the president.

Laredo is located across the Rio Grande from Nuevo Laredo, Mexico, where hundreds of asylum-seekers have waited for the past year under the Trump administration’s Migrant Protection Protocols (MPP), or “Remain in Mexico” program. The migrants cross on foot from Mexico through the ports of entry to attend hearings, which are held via video conference with immigration judges from elsewhere in the United States.

Some judges ‘not working at all’

Due to the coronavirus pandemic, all MPP hearings have been postponed since March and won’t resume until the virus is contained and certain measures are met, according to the Department of Justice.

Cuellar said adding to the overwhelming backlog of cases is the fact that many U.S. immigration judges have been given a paid leave of absence since March due to the coronavirus pandemic and are not working from home.

I have a problem with them collecting a federal paycheck and not working on a single case.”

U.S. Rep. Henry Cuellar, D-Texas

“They’ve handled zero cases since March, no motions, no cases and part of the problem is the administration has not given them the proper equipment, such as laptops so they can telework,” Cuellar said. “We all telework. I think they should too. If you’re going to be at home, then they should be working on cases. I have a problem with them collecting a federal paycheck and not working on a single case.”

Filling the benches

Since Fiscal 2016, Congress has funded the addition of 415 new immigration judges.

Appropriating the money and actually filling the seats on the bench, however, have proven to be two very different things over the years. Since June, EOIR has hired 79 judges, bringing the nationwide total to 509. This is still 25 judges shy of the number of judges for which Congress has approved funds.

Critics say the EOIR, which is under the Justice Department, has been slow to hire judges and reduce case backlogs because of a number of reasons:

• There has been a shortage of courthouse hearing rooms for new judges to operate. In Fiscal 2020, for instance, there were 62 fewer courtrooms than money for judges. Currently, Congress has authorized 534 immigration judges but only has 426 courtrooms nationwide, Cuellar said.
• In 2019, the agency faced a “record” turnover and retirement of 35 immigration judges, the most since records were started to be kept in 1997, according to a recent report by the nonprofit Transactional Records Access Clearinghouse (TRAC) at Syracuse University, which tracks cases.
• And there are requirements that each judge clear at least 700 cases per year.

The high turnover of judges and hiring of new judge replacements “means more cases are being heard by judges with quite limited experience,” the July 13 TRAC report states. One-third of all current sitting immigration judges were hired since Fiscal 2019; 48% were hired within the last 2.5 years, the report says.

“The backlog is just incredible,” Cuellar said. “The wait time is incredible. I’m an attorney and I’ve always said a day delayed is a day without justice.”

The average wait time for an immigration case currently is 759 days nationwide. In Texas, the immigration court wait time is 793 days, Cuellar said.

In January, U.S. Immigration Judge Ashley Tabaddor, who is president of the National Association of Immigration Judges, testified before Congress urging that EOIR be separate from the Department of Justice to create an “independent immigration court.”

The current system is set up so that immigration judges are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor. Immigration case reviews can also be overturned on appeal by the EOIR director who doesn’t even have to have a law license. Tabaddor told the House Judiciary Subcommittee on Immigration and Citizenship on Jan. 29 that “conflict and tension” pervade throughout the immigration court system because it falls under the umbrella of a law-enforcement agency. She also said that only 60% of the 440 U.S. immigration judges who were employed at the time met requirements that each immigration judge complete at least 700 cases per year.