A Frontline Perspective: What the Changes in Immigration Courts Mean for Massachusetts

By Elizabeth Badger, Senior Attorney/Justice for Immigrant Families Program Manager, PAIR

The firing of immigration judges, particularly ones who have a background both as private legal representatives of noncitizens as well as working for government agencies, raises concerns about unbiased adjudication in the immigration courts. Also, with the firing of 20 immigration judges last week and more to come in the near future, fewer judges will only result in longer adjudication delays for respondents who have legitimate defenses under the law to their removal.

Today, it can take 2-6 years for a case to complete before the immigration court.

Adjudication delays prevent applicants and their families, including U.S. citizen children, from accessing necessary pathways to stability and advancement, not the least of which include permanent immigration status, employment, public assistance, housing options, and financial aid for education. It also stifles legal services organizations who are working well beyond capacity since they cannot accept new low-income community members for representation until they have resolved existing client matters. Most of the legal services in Massachusetts are operating beyond capacity because of the severe backlogs in the immigration system.

There has been a seismic shift in immigration law, policy, and procedure that is negatively impacting our clients and immigration communities. Presently, PAIR is working with numerous community partners to educate the public and especially impacted communities about their rights and legal defenses. PAIR’s staff and its pro bono volunteers are working at maximum capacity to advance and present their clients’ cases in immigration court so that PAIR may continue to address the overwhelming unmet need for representation of other low-income asylum seekers and noncitizens facing removal. The legal community can assist by volunteering to represent noncitizens and/or providing financial support to PAIR and other legal services organizations providing direct, individual representation to families facing deportation. Access to counsel is a must to navigate the immigration system and win immigration relief.

There is nothing that can replace having the option to present in-person before an immigration judge, especially for a survivor of violence. Thanks to recent legal victories, when video judges based in other jurisdictions hear cases venued in Massachusetts courts, they will no longer be able to apply the circuit court law of the immigration judge’s jurisdiction, see Matter of Garcia, 28 I&N Dec. 693 (BIA 2023). But this is still inherently unfair for MA-based clients. The use of video judges is not conducive to a full and fair presentation of a case, particularly where credibility of an asylum applicant may be assessed in part based on demeanor. Some studies have also shown that video hearings result in high bonds and denials of relief.¹

Executive actions that result in adjudication delays which in turn prevent applicants, particularly low-income families, from accessing resources necessary to carry on with the requirements of daily living are often geared toward deterring families from trying to seek status outright. It undermines their legal rights. That such actions are de facto targeting low-income immigrant communities stands in contrast to the recent executive announcement about a pathway to citizenship for those able to invest $5 million in the United States. Adjudication delays, whether due to the firing of immigration judges or the immigration courts’ convoluted adjudications priorities that detract from independent and fair docket management, will have negative downstream effects on our legal system and the rights of immigrants, including: increasing the tremendous backlogs of the courts, causing years of additional delay and extending family separation, making the position of an immigration judge simply undesirable to qualified candidates, and creating extreme instability for applicants waiting in the system while cutting off new applicants whose applications can’t be docketed because of lack of court staff and resources. It is critical that more resources be diverted to immigration courts at this time, not less.

¹ See, e.g., Brennan Center for Justice, “The Impact of Video Proceedings on Fairness and Access to Justice in the Court” (Sept. 10, 2020) https://www.brennancenter.org/our-work/research-reports/impact- video-proceedings-fairness-and-access-justice-court.