Backlogged immigration court cases

A map generated by TRACImmigration, a nonpartisan organization that publishes federal immigration data, shows the concentration of 5,445 backlogged cases in Nebraska's immigration court in Omaha as of May 2018. 

The backlog of immigration cases in Nebraska leaves Bassel El-Kasaby, a veteran immigration lawyer, without answers when clients ask how long it might take for them to learn whether they can stay in the United States.

The Omaha Immigration Court's "unreal" waiting list — more than 9,000 pending cases — creates a legal purgatory of sorts, he said.

"I've had people die waiting," El-Kasaby said.

The court's three judges decide the fates of people apprehended by immigration authorities in Iowa and Nebraska. The largest number of people waiting live in Omaha.

The average case on Omaha's docket has been open 855 days, four months longer than the national average of nearly two years, according to court records from May reported by the Transactional Records Access Clearinghouse at Syracuse University.

America's immigration court backlog — totaling 714,000 cases — came under the national microscope as public attention fixated on the Trump administration's now-abandoned policy of separating immigrant families seeking refuge at the southwest border.

The administrative court system is overseen by the Executive Office for Immigration Review, a subset of the Department of Justice.

Backlogs in Omaha and at the nation's other immigration courts are products of increased immigration enforcement that has swamped the 334 judges tasked with ruling on cases nationwide, lawyers and court officials say.

Gail Montenegro, a Chicago-based spokeswoman for the Omaha court, said there hasn't been a new judge added to the Nebraska court in the past year.

President Donald Trump authorized 100 new immigration judge positions in March, and Justice Department officials are doing all they can to shorten their hiring process, which can take 10 months, she said.

The Executive Office for Immigration Review is actively working to reach that goal and reduce the hiring process to six months, Montenegro said in an email.

Most of the immigrants in Nebraska's immigration court come from Mexico and the Central American countries of Guatemala and El Salvador, according to immigration court data.

Outside of Omaha, many of the immigrants facing the possibility of deportation live in Grand Island, Lincoln, Fremont, Schulyer and Crete, according to court data.

Court records project 1,800 cases will be decided this fiscal year.

Two-thirds of the 1,200 cases already closed this year have resulted in deportation, according to the data.

Former President Barack Obama's strict immigration enforcement early in his first term loaded court dockets, El-Kasaby said. That was before Obama instructed Immigration and Customs Enforcement agents during his second term to prioritize dangerous criminals, people who had previously been deported and those who just arrived.

That helped streamline the court's operations somewhat, El-Kasaby said.

But prosecutions began climbing during Obama's final year, and Trump's immigration crackdown has left the priority system behind and "removed protected classes of aliens," an ICE spokesman told the Journal Star last fall.

That's created a "free-for-all" in immigration enforcement, El-Kasaby said.

Many detained immigrants are kept at jails that contract with ICE in Hall and Douglas counties, but decisions on who should remain locked up and who may be released on recognizance are irregular, the lawyer said.

Sixty percent navigate Omaha's court without help from lawyers like him because court-appointed representation isn't guaranteed in this system as it would be if federal prosecutors charged them with a criminal violation of U.S. immigration law, he said.

That contributes to the backlog, he said: With so many immigrants representing themselves, judges often continue cases to ensure the person understands the process.

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When a case reaches decision day, attorneys must present evidence quickly, El-Kasaby said. Judges are smart and capable, he said, doing the best they can to keep up.

"They’re dealing with high volume, so there is no way to give particularized attention to any case,” El-Kasaby said.

The president of the National Immigration Judges Association told NPR this week that 1,000 to 1,200 more judges would be needed to tackle the system's backlog.

U.S. Ben Sasse, who sits on the Senate's Judiciary Committee, declined an interview request. But in a statement, he said the effects of an immigration system in disarray and bad immigration policy in Washington are being felt in Nebraska.

“There are a whole bunch of problems clustered together that have made this situation worse, but one part of the solution is making sure that people have cases heard in a timely manner," Sasse said in a statement. 

The senator from Fremont has cosponsored two bills that would increase the number of immigration judges.

One of those bills would send a fleet of emergency immigration judges to process cases at the southwest border. It has been voted out of committee but not taken up yet by the full Senate.

The other, introduced by Texas Sen. Ted Cruz, would double the number of immigration judges overall. It remains in committee.

As it stands, the backlog is so large that scheduling a final hearing extends past this calendar year, El-Kasaby said.

"I will probably get (a hearing) in 2022," El-Kasaby said. "If I’m lucky, 2021."

Meanwhile, one of his clients in the backlogged docket is a man with needs that extend beyond his status in the United States: One of his kidneys is failing, and he has dim hopes of getting a transplant due to his situation, El-Kasaby said Friday.

"I’m worried about the guy living long enough."

Reach the writer at 402-473-2657 or rjohnson@journalstar.com.

On Twitter @LJSRileyJohnson.



Riley Johnson reports on local government in Lincoln.

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