Decisions benched by delays on Denver's overloaded U.S. Immigration Court (The Denver Post)

Decisions benched by delays on Denver's overloaded U.S. Immigration Court
By Nancy Lofholm
The Denver Post
POSTED: 05/22/2011 01:00:00 AM MDT

Eleven Spanish-speaking men rise reluctantly from wooden benches in the U.S. Immigration Court in Denver. On instructions from a court interpreter, they raise their right hands and in unison they swear to tell la verdad, the truth.

They are instructed to seek attorneys to help them navigate a deportation process steeped in its own complicated language of 42Bs, 204(g)s, I-130s and 240Bs. They are collectively told to return to this court — one of the most overloaded in the country — on the same day of the month and time seven months from now.

Even with this time-saving group approach to judicial process, each will wait 501 days on average to have a full hearing on his case.

The U.S. Department of Justice Executive Office for Immigration Review's Denver-based court is slogging through 7,200 pending cases, putting it in the nation's top 10 for overloaded immigration courts.

It's a dubious distinction that the state can't fix and the federal government isn't doing anything about.

Immigration courts are outside the purview of the judicial system and instead operate under the Justice Department. That agency has a hiring freeze, so there is no relief in sight in the form of new staff. In fact, there is fear the problem could grow worse: If overworked judges or support staff leave, they can't be replaced.

Two judges were added in the Denver court last year, but those appointments did not come until the two longtime judges already on the bench built up some of the highest pending caseloads in the country — as many as 2,400 each, compared with a national average of 1,500.

Even with the additional judges, the grocery-like carts that Homeland Security prosecuting attorneys wheel into court daily are still stuffed with files.

Colorado may stand out as one of the worst, but nationally, the immigration court backlog is troubling. Around 270,000 cases being handled by 262 judges have swelled to enough of a problem that the Senate Judiciary Committee held a hearing last week to consider ways to improve the system.

"Starved" for resources
The National Association of Immigration Judges submitted a statement to Congress decrying the fact that they must operate "in a resource- starved environment" while the government increases allocations for more enforcement actions that generate larger court dockets.

"The current structure is fatally flawed," said Judge Dana Leigh Marks, president of the national association, in a phone interview following that Senate committee hearing.

Judges, attorneys, immigrant-rights advocates and judicial watchdog groups report that the courts are becoming more bogged down for a variety of reasons.

Deportation crackdowns and the implementation of the Secure Communities initiative to identify more criminal illegal residents are landing more cases in court. Those cases are growing more complex as undocumented residents seek asylum or other means of fighting deportation. More defendants are showing up for their hearings: In the past, many simply vanished after being handed the failure- to-appear notices that are the first step to deportation.

More appeals are being filed. Marks pointed out that immigration judges more often than not don't have the luxury of taking even a brief recess to ponder a case before rendering oral decisions that are profoundly life-altering for court respondents. Those rushed hearings and decisions lead to more appeals.

"I often say, 'It's like trying death- penalty cases in a traffic court setting,' " Marks said.

Her organization is recommending that the immigration courts be separated from the Department of Justice so judges and immigration court prosecutors no longer "work under the same boss." The organization also recommends hiring retired judges to ease the backlog quickly, adding more support staff, and tracking the burden on different courts so resources can be more efficiently allocated.

Feds defend system
The Justice Department maintains that the current system provides "the necessary time and consideration to ensure fairness," according to a statement from Elaine Komis, spokeswoman for the department's executive office for immigration review. She declined to allow interviews with court officials in Denver.

Immigration and Customs Enforcement spokesman Carl Rusnok also said the system was working and that ICE was focusing its efforts, "first on those serious criminal aliens who present the greatest risk to the security of our communities."

In the crowded hallways of the immigration court, tucked away in windowless rooms on the third floor of the downtown Denver Bank of the West building, attorneys scoff at that.

"Things would not be so bad if they would prioritize like that, but they don't," said immigration attorney Kimberly Medina of Fort Collins. "Most of my clients were just in the wrong place at the wrong time. They do not have criminal records."

Olga Angelina Lozada Garcia, one of 54 defendants on the docket in one courtroom on a day last week, is a case in point. She is also an example of why the backlogged court system can be a time-buying boon to immigrants fighting to stay in the U.S.

The frail-looking 13-year-old from Guadalajara, Mexico, was taken into custody by Border Patrol agents when she attempted to walk across a bridge into the United States in 2010 after her mother, an exotic dancer who associated with drug cartel members, was dragged away from their home and is believed to have been murdered.

Lozada Garcia was attempting to join her father, who has been living in Denver for 11 years.

She said she is seeking asylum because she fears she will be killed in Mexico after witnessing her mother's kidnapping.

She has appeared in the Denver immigration court three times. But she will likely be graduating from high school before her fate is decided. Immigration Judge David J. Cordova this week set her next appearance for Jan. 14, 2013, and sent her off with a warning that he will likely not entertain her request for asylum then.

"Those asylums are not going now," he gruffly told her and her attorney, Lourdes Rodriguez, referring to Mexicans seeking asylum because of the drug-cartel violence that has turned their country in a war zone.

Rodriguez said that when Cordova turns down her client, she will file an appeal that will keep her case on the pending list for an additional several years.

U.S. Sen. Michael Bennet, D-Colo., said fixing court backlogs should be a consideration in any comprehensive immigration reform.

"Washington needs to take a comprehensive and balanced approach to immigration reform," Bennet said in a statement. "We plan to look further into the backlog at Denver's immigration court, which is just another sign that the system is broken and places huge strains on our legal system and Colorado's law enforcement community."

But U.S. Rep. Mike Coffman, an Aurora Republican, said he believes the most cost-effective way to reduce the caseload in immigration court is by keeping illegal immigrants from entering the U.S. in the first place.

"The best way to alleviate the backlog of our nation's overburdened immigration courts is to secure our borders and enforce existing immigration laws, which is clearly not a priority for this administration," Coffman said.

The Obama administration has increased the number of illegal immigrants deported by 6 percent over the numbers at the end of the George W. Bush administration.

By targeting illegal immigrants with criminal records for deportation, the Obama administration increased the number of those people who were deported by 71 percent, comparing 2008 to 2010, according to the fact-checking site Politifact.

But even illegal immigrants who don't string out a legal fight or who wish to leave the country voluntarily will rack up multiple hearings in immigration court. It is never as easy as putting them on a bus and sending them back to Mexico, which is the home country of the majority of respondents in Denver immigration court. Their criminal records must be checked and the circumstances of their arrests are examined. If they are in detention, they must prove they have enough money to travel to their native country.

More beds, more detainees
Detained immigrants in the ICE contract detention center in Aurora or in other jails around the state get their cases heard more quickly. They can expect an initial hearing within days from one of two judges stationed at the Aurora facility and a full hearing within a couple of months.

But that could change for one of the same reasons that Denver's court has fallen so far behind. ICE has added 1,500 new beds at that facility as Colorado begins to implement Secure Communities. However, there is no plan to add another immigration judge at the center to handle more detainees.