Virginia’s immigration court backlog among largest in nation
The first thing Abbie Arevalo Herrera is going to do when she eventually leaves sanctuary is thank God.
“He’s the one who’s allowed me to have this experience, and I feel like I’m learning a lot, things I never imagined,” Arevalo Herrera said in Spanish.
And then, she said with a pause, she’s going to the beach with her children. She finished the sentence with laughter and a smile in the basement of the Richmond church where she has lived in sanctuary since last June, when then-Attorney General Jeff Sessions announced that survivors of domestic violence no longer qualified for asylum. Arevalo Herrera was then ordered deported to Honduras, her home country that she fled after years of domestic violence at the hands of her ex-partner.
“I never imagined or dreamed of going to this country, I came because of how desperate I was,” Arevalo Herrera said. “I thought this was the farthest I could go. At least I was going to be protected from him.”
She never imagined how difficult the immigration process would be when she made the decision in 2013. She said she thought the U.S. would protect her and her daughter because they were fleeing violence.
Arevalo Herrera spent days in an “hielera” — a term meaning “icebox” that refers to immigration detention centers because of how cold they are — and was given a notice to appear in immigration court. The problem was, the notice didn’t indicate what date or time, and she missed her hearing after she was released.
That, compounded with what her current lawyer Alina Kilpatrick called “one of the worst cases of legal work I’d ever seen” from previous attorneys, put Arevalo Herrera in a precarious legal situation.
Arevalo Herrera said that at one point, a lawyer simply told her he didn’t know what to do.
“Pero igual yo había pagado,” she said. But either way, she had already paid.
“We’re people, we’re human beings. I have children, and he isn’t looking at the case as a family that he’s saving — he’s just looking at it in terms of money,” Arevalo Herrera said. “I just ask that people look at us as human beings; that’s what we are.”
The problems Arevalo Herrera experienced, such as low-quality legal services and not being notified of her court date, are common, Kilpatrick said. They are symptoms of broader issues within the U.S. immigration system, which has undergone dramatic changes and seen an increasing backlog since the beginning of the Trump administration.
Most immigration judges are booked until 2022, Kilpatrick said, and though new hires have been made to alleviate the years-long wait times, that means some hearings are rescheduled for earlier dates.
“And if in your mind, you have a certain period of time to gather your evidence, maybe you haven’t done it, maybe your attorney doesn’t have time to do it when it was just set [further in the future],” Kilpatrick said. “So it becomes a very big problem.”
For three and a half years, Arevalo Herrera had check-ins with the Intensive Supervision Appearance Program — an alternative to detention for people in immigration proceedings operated by the electronic monitoring company BI Inc. — every Monday, which sometimes ate up the entire day. The same thing happened with weekly home visits, she said.
The office, located in Midlothian, was far from Arevalo Herrera’s home. She needed $40 saved by every Monday to pay for a ride to her appointment because as an undocumented immigrant living in Virginia, she can’t have a driver’s license. During this year’s General Assembly session, several legislators introduced bills that would have given undocumented immigrants driving privileges, but all of them failed.
The time commitment required by the check-ins also made finding work difficult, she said.
“You get depressed, thinking, ‘Oh my God, I don’t know what to do,’” Arevalo Herrera said.
Being under supervision affected Arevalo Herrera in other ways, too. The ankle bracelet she has to wear as part of being under supervision brings unwanted attention and stigma.
“It was absolutely horrible,” Arevalo Herrera said. “I didn’t wear shorts or dresses or anything that showed the ankle bracelet because people from here, from the U.S., are afraid of people when they see they have the ankle bracelet.”
Once, in the grocery store, a mother grabbed her son and ran away when she saw Arevalo Herrera had an ankle bracelet.
“People have asked me a lot of times why I have the ankle bracelet and what it was that I did. I haven’t done anything, and I’ve tried to follow this country’s rules. I haven’t been able to resolve anything,” Arevalo Herrera said. “I just told [the people who asked], ‘Because I crossed the border.’”
The longer wait times in immigration courts mean immigrants are under supervision, and subject to the problems Arevalo Herrera faced, for longer periods of time, Kilpatrick said. According to a Syracuse University database, the average case in Virginia in 2019 has been pending for 936 days, making it the state with the third-longest wait times in the country.
In the wake of sweeping changes to the U.S. immigration system, attorney Sarah Milad heard something from a judge that stuck with her.
“I was in court with a judge one day who said, ‘It would be really nice if there was one week where immigration law didn’t change as I’d known it for the last 20 years,’” Milad said.
Those changes include factors that Milad and other experts on immigration say have caused an immense backlog in the immigration system, including in the courts — which adjudicates immigration cases, determining whether an immigrant can remain in the U.S. — and in U.S. Citizenship and Immigration Services, which issues visas.
Virginia has the sixth-largest immigration court backlog in the nation, behind states like New York, Texas and California. As of this year, 44,779 pending cases await a hearing in the state’s sole federal immigration court in Arlington.
Of those cases, 96% are based on immigration alone, encompassing things like asylum cases and immigration violations, such as having entered the country without authorization or not leaving the U.S. after a visa expires. The remainder of the cases are based on charges related to national security or terrorism.
Though the Arlington court’s total number of cases processed annually increased by 78% from 1998 to 2019, that jump pales in comparison to the skyrocketing backlog in its docket. The number of pending cases increased by almost 1,900% from that time to now. While the backlog started increasing in Virginia’s federal immigration court in the mid-2000s, the number has doubled since 2015, and much of the increase occurred after President Donald Trump took office.
The president has repeatedly criticized the immigration courts for the backlog, even suggesting the courts be abolished. Some groups, such as the Center for Immigration Studies, have said Trump’s proposed policy changes would help reduce the number of pending cases by hiring more immigration judges and reducing incentives for undocumented immigrants to remain in the country and fight their cases. But others cite the president’s policies as reasons for the backlog.
Simon Sandoval-Moshenberg, the director of immigration advocacy at Legal Aid Justice Center in Charlottesville, says the reason for the dramatic increase is clear: When Sessions was U.S. attorney general, he ended a process that allowed immigration judges to close a large number of cases. Administrative closure allowed judges to suspend proceedings, though it didn’t give an undocumented immigrant any legal status.
“The No. 1 sort of ‘off-ramp’ for removal proceedings is now completely closed,” Sandoval-Moshenberg said. “And a large number of people — supposedly every single person who’s been given that off-ramp — is going to be put back on the docket.”
Similar in effect was another Trump administration policy change, rolled out around the time of the January 2017 travel ban. While previously not all undocumented immigrants, especially those who had never had run-ins with the law, were prioritized for deportation, the change now means no group is exempt from enforcement.
Sandoval-Moshenberg and other advocates say the change has led to an increased number of arrests by U.S. Immigration and Customs Enforcement, resulting in a greater number of cases in the courts. He disagrees strongly with the measure.
“It is simply not the case, neither is it a matter of law or a matter of good public policy, that every single undocumented person that ICE comes across has to be put in deportation proceedings,” he said.
As of 2018, Virginia had the 12th-highest number of ICE arrests in the country and the eighth-largest number of removals under the Secure Communities program, under which the FBI provides fingerprints to the Department of Homeland Security to identify noncitizens. Local police departments share fingerprints with the FBI, meaning DHS has access to fingerprints from those departments. In Virginia, more than 12,000 people have been deported as a result of the program.
Before ICE’s priorities were changed by the Trump administration, most of the cases heard in immigration courts were the result of an immigrant being convicted of a crime and put in deportation proceedings, said Kevin Cope, an immigration law professor at the University of Virginia.
“[Criminal cases] tend to be simpler than many other cases because the predicate event is this criminal conviction, which is a matter of fact, it’s in the record,” Cope said.
But as a result of the end of prosecutorial discretion two years ago, which means all removable immigrants are targeted for deportation, Cope said, the courts are hearing more complex cases that take longer.
An increase in asylum applications, from migrants arriving at the southern border and from other regions, is another factor in the backlog, Cope said.
“A lot of the outcomes of asylum cases depend on what happened in a place that may be thousands of miles away,” Cope said. “It may not be easy to get access to records or get witnesses there.”
Trump recently directed his administration to tighten restrictions on asylum seekers, including introducing fees, barring anyone who crosses the border illegally from obtaining a work permit and requiring asylum applications to be adjudicated within 180 days, a drastic shift from the years-long wait times applicants currently experience. While the Department of Justice and DHS have not yet made the changes, they would serve to reduce the overall number of asylum applicants.
The rise in immigrants seeking asylum occurred during Barack Obama’s presidency, as did an increase in unaccompanied minors crossing the border. Cope says that administration’s reaction to their arrival is cited by some as a reason for the increase in pending cases.
When the Obama administration prioritized cases involving unaccompanied minors and families, it moved those groups to the front of the “front of the line,” Cope said, requiring judges to shift their dockets.
“It creates some amount of inefficiency when cases are shifted around like that,” Cope said.
In a report released last month, the American Bar Association wrote that the U.S. immigration system is “on the brink of collapse.” It said there is a “tremendous need” for more resources.
Immigration attorney Sarah Milad — who is part of Northern Virginia’s Just Families, an organization that aids immigrants — agrees. She said hiring more judges, which the Trump administration paused in March days before outlining a plan to hire 100 more, would help alleviate the issue.
Better access to attorneys would also help, she said. When immigrants are unable to afford a lawyer, they sometimes have to ask for continuances to prolong their cases while they search for representation, pro bono or otherwise.
“They’re often asking questions of the judge who’s trying to help them navigate their legal rights without an attorney,” Milad said. “There is some effort to do universal representation in certain localities, so when there is funding available for non-profit attorneys, pro bono attorneys to provide services, then more staff can be hired and more people can be helped.”
But a number of experts, and the American Bar Association, agree that the very structure of the immigration courts, which fall under the control of the attorney general and DHS, needs to change. That would mean making them Article I courts, in line with bankruptcy courts, or creating a new executive agency under which they would operate.
“I think we have to start being very radical about how we look at this problem,” said Alina Kilpatrick, Abbie Arevalo Herrera’s lawyer. “We have bankruptcy courts that have independent judges — we can make immigration courts independent and have a smoother process.”
According to Cope, working under a political appointee like the attorney general reduces the independence of judges. An independent judiciary would “improve the quality of justice” for many immigrants.
“It’s hard to have faith in a system when the person who decides your case works for” a political appointee, Kilpatrick said. “An independent judiciary would be much better equipped to handle this problem because I think a lot of the judges are very intelligent people and have great ideas on how to fix this — or at least make it better.”
For Arevalo Herrera, fixing the immigration system would be a step toward equality for immigrants.
“How can we change this, to truly have equality among human beings?” Arevalo Herrera asked. “We came here in search of better opportunities, for a better quality of life, to be safe. That’s all we ask for, safety. And they don’t see us like that — they see us as criminals.”