Immigration court backlog keeps asylum seekers in limbo

Medill News ServiceJune 15, 2010 

WASHINGTON — People who come to the U.S. seeking asylum from persecution are struggling while their cases stall in the backlogged dockets of the nation's immigration courts.

As a result of heightened immigration enforcement in the past several years, the courts have shifted their resources to deal with people in immigration detention facilities. Combined with a shortage in judges, that has meant longer wait times for all types of immigration cases to be resolved.

For asylum seekers, longer waits can mean spending months or years in detention. For those not in custody, the delays can leave them in a state of limbo, allowed to live in the country legally but not to work or access social services while they wait to plead their case in front of a judge.

Sa'youh Tunji, 28, from Cameroon, who now lives in Maryland, spent more than five years waiting for his day in court.

"I went from trouble back home to more trouble," he said.

Tunji fled Cameroon in 2003 after his father was killed — by government forces, Tunji thinks. His father had been a political activist with the Southern Cameroons National Council, a group that advocates for independence of English-speaking Southern Cameroon from the French-speaking majority. Tunji recalled police harassing the family when he was a child, raiding their house and taking him into custody to question him about his father. As a university student, he became an SCNC activist and was arrested twice for his own political activities. He described being beaten and tortured in police custody.

After his father's death, Tunji got word that the police were looking for him. He left the country, entering the U.S. on a visitor's visa to stay with family friends. He found himself thrust into a process that resembled a Kafka novel.

His initial application at an asylum office in October 2003 was rejected and referred to the Baltimore immigration court. Over the next several years, the court postponed his hearing date time after time.

In the end, a judge granted his asylum petition. In the intervening years, however, Tunji couldn't work legally. He had to largely rely on his wife — a U.S. citizen he met after arriving in the country — to pay the bills for them and their infant daughter.

Within months of gaining asylum status, he found work as an office coordinator, and he now studies information technology at Johns Hopkins University.

However, Tunji said the years of uncertainty took a toll on his marriage. He and his wife are now separated.

Asylum seekers may apply for work authorization 150 days after filing their asylum application, but the authorization "clock" can be stopped for a number of reasons — including any time asylum seekers or their attorneys ask for hearings to be postponed. The rules are intended to discourage people from filing frivolous applications, but immigration attorneys interviewed for this story said the current regulations are overly complex, and often courts stop the clock in error.

When that happens, the clock doesn't restart until the next hearing date, which, because of the number of cases on each judge's docket, may not be for a year or more.

In the meantime, asylum seekers with pending cases are not eligible for government-provided social services. Those who arrive without savings must rely on family, friends, religious organizations or private charity groups to get aid for needs such as medical care and housing.

"It's a very difficult circumstance we put people in who are escaping persecution," said Karol Brown, an immigration attorney in Seattle.

A bill introduced in March by Sen. Patrick Leahy, D-Vt., would limit the detention of asylum seekers and remove some of the legal barriers to petitions, such as the current one-year deadline to file an asylum application after arriving in the U.S. The bill wouldn't change the work authorization system.

Asylum regulations mandate that cases should be resolved within 180 days, but many drag on longer.

A Justice Department review of its own performance in fiscal 2009 shows the percentage of asylum cases completed within the mandated window was at a 10-year low, at 82 percent — short of the department's 90 percent target.

The Justice Department report cited an increase in detentions as the primary reason asylum cases are falling behind, noting that detained cases had increased 70 percent in the past five years and comprised about half of the immigration courts' caseload in 2009. As a result, the report said immigration judges had been shifted away from other types of cases.

Dana Leigh Marks, president of the National Association of Immigration Judges, said that on top of that, the hiring of judges hasn't kept pace with the rate of judges retiring or leaving. The caseload that immigration judges deal with — the average judge had 1,200 pending cases last year — makes it difficult to devote attention to complex and high-stakes asylum cases.

"We feel that we are doing death penalty cases in a traffic court setting," she said.

Elaine Komis, a spokeswoman for the Justice Department's Executive Office for Immigration Review, said the agency is trying to address the judge shortage now. The office is hiring 43 new judges, including 28 new positions, by the end of the current fiscal year and hopes to increase the roster of judges by 19 percent by the end of fiscal 2011.

(The Medill News Service is a Washington program of the Medill School of Journalism at Northwestern University.)

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