New York

I-Team: ‘Phantom' Judges Cause Confusion in NYC Immigration Court Amid Nationwide Case Backlog

As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court

What to Know

  • Attorneys who rep clients in NYC immigration court say DOJ is scheduling them for hearings on a "visiting judge" docket, causing confusion
  • Some say the "visiting judge" placeholder is misleading; the DOJ hasn't assigned living, breathing visiting judges to hear the cases
  • Despite the mountain of pending cases in nation, serious efforts are being made to slow blacklog growth and eventually begin cutting it down

Attorneys who represent clients in New York City's busy immigration court say the Department of Justice is scheduling immigrants for hearings on a "visiting judge” docket, even though the department hasn't assigned living, breathing visiting judges to hear the cases. 

The practice is leaving some immigrants confused when they show up to the 12th floor of 26 Federal Plaza, home to the nation's busiest immigration court, only to find there is no actual human to preside over their scheduled hearings. 

Cameras are not allowed in the hallways outside immigration court, but the I-Team obtained a photo of a memo recently posted in the hallway that reads, "Cases presently scheduled with Visiting Judge (VJ) 1, 4, 8, 9, 10, 12, & 13 WILL NOT go forward on the current scheduled hearing date." 

Kennji Kizuka, an attorney for Human Rights First, an organization representing hundreds of immigrants seeking asylum in the U.S., said the use of the visiting judge docket is a misleading placeholder that serves only to frustrate people who are trying to follow the rules and show up on time for their hearings. 

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"These are phantoms," Kizuka said. “There is no Visiting Judge 9. There is no person who is Visiting Judge 1 and there won’t be. The court has said so. It is just a placeholder.” 

John Martin, a spokesman for the immigration courts in New York and New Jersey, declined to comment on the number of cases scheduled on visiting judge dockets or on how often visiting judge cases are postponed. 

In June, when a reporter from WNYC radio first asked about no-name judges, Martin described the visiting judge dockets as a "concept" that is used “for internal case management.” When judges retire or get sick, he said the Immigration Court assigns their cases to a “visiting judge” in order to maintain continuity until a new judge is hired to replace the old one. 

But so-called "phantom" judges may be a symptom of a larger problem facing immigration courts nationwide: newly released data show a backlog of more than 600,000 cases that is blocking the court's ability to deal swift justice to thousands of people who are following the rules -- and applying to live in the U.S. legally. In New York City alone, there were almost 83,000 pending cases last month, up 22 percent from about 68,000 pending cases in August 2015. 

As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court. 

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"It's a disaster. I think it's moving toward implosion." said Judge Paul Wickham Schmidt, who retired last summer from the Immigration Court in Arlington, Virginia. 

"The immigration judges have been the canaries in the coal mine saying that we're going to be overwhelmed, that we needed more help," said Judge Dana Leigh Marks, in her capacity as president of the National Association of Immigration Judges. 

According to Judge Robert Weisel, who retired last year after 27 years on the bench in New York and New Jersey, the case backlog began with a shortsighted decision to institute a hiring freeze. Between 2011 and 2014, the federal budget sequester made it basically impossible for the Justice Department to hire new judges. Meanwhile, the Obama administration was increasing enforcement, which put more cases into the system. 

"So we were not able to hire judges,” Weisel said. “We were not able to hire staff. We were not able to hire judicial law clerks, and as a consequence, while the caseload kept on inexorably going up, we were unable to hire judges. But through natural attrition we were losing judges." 

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Weisel said during his tenure, there were occasions that cases in New York City were assigned to visiting judge dockets, but in those instances there actually were living, breathing visiting judges present to preside over the hearings. 

Kizuka believes the use of visiting judge dockets as an indefinite placeholder is new. 

“We weren’t seeing this before the new administration took office,” he said. 

Ultimately, immigrants themselves are the ones most impacted by the backlog and the sometimes confusing scheduling. 

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Juana, a Guatemalan asylum-seeker living in California who agreed to speak on the condition her last name be withheld, said she has been hoping for a decision in her case so she can make arrangements to bring her sick mother to the United States before she dies.

Her last hearing was canceled. She won’t see a judge until sometime in 2018 at the earliest. 

“I cry because my mother is sick and I don’t know if I’ll be able to see her again,” she said. 

Despite the mountain of pending cases, serious efforts are being made to slow the growth of the backlog and eventually begin cutting it down. Now that the hiring freeze has been lifted, immigration courts across the country are replenishing their benches with new hires. In New York City, where the roster of judges has stood at 32 each of the last two years, the Department of Justice recently announced eight job openings for immigration judges. 

Weisel said the court is also planning to ask retired judges to come back and work part-time to help chip away at the backlog. 

He said it is imperative not only that more judges be hired, but that Congress reform the nation’s immigration law –- and simplify it -- so that judges can deal more quickly with cases that are uncomplicated. Weisel added that the backlog and the resulting delays are particularly troubling to him because immigration court decisions impact not just the person applying to live in America, but entire families in their home countries. 

“The consequences of a court’s decision will have ramifications for their relatives,’" Weisel said. “You know it’s an awesome responsibility to say to yourself, ‘I’m going to decide who someone’s descendants are going to be.'”

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