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As immigration courts battle record backlog, retired Bay Area judges offer solution

Spurred into action by the country’s overwhelming immigration court backlog, two retired Bay Area federal judges have asked Attorney General Jeff Sessions to appoint retired judges to help clear the more than 700,000 open immigration cases in the United States.

In a letter sent Thursday to Sessions and Executive Office for Immigration Review Director James McHenry, retired U.S. District Court judges Marilyn Hall Patel and Lowell Jensen urged the pair to use this “considerable resource” to alleviate the “crushing burden of pending and new cases.”

“We are aware that at this time there are extraordinary burdens and backlogs faced every day by the country’s immigration judges, particularly along the southern border,” the letter said. “We believe retired federal judges are a valuable untapped resource who could be called into service to assist in handling the immigration caseload fairly and efficiently.”

The backlog of immigration cases — which includes deportation hearings and asylum claims — increased by almost one-third under the Trump administration, with 171,656 cases added since the president took office, according to a June report by the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University. The number of cases awaiting decision reached an all-time high of 714,067 at the end of May, TRAC data shows. The group analyzes and publishes data it collects on the activities of the U.S. federal government.

That number is likely to grow, as thousands of undocumented immigrants have been seeking asylum at the U.S.-Mexico border with their children in recent weeks. Decisions on granting asylum or another type of relief now take more than twice as long as removal decisions, according to TRAC data. Relief decisions this year on average took 1,064 days — up 17 percent — from last year.

Patel said long immigration backlogs are harmful to the cases themselves because it means judges are spread so thin that they don’t have sufficient time to devote to each case, no matter how complex.

“It means that not enough time is given to each case that is required,” she said. “That’s the problem. You can’t handle these things in-and-out.”

The Department of Justice’s Executive Office for Immigration Review, which oversees U.S. immigration court, declined to comment on Patel’s letter Thursday because the agency hasn’t received it yet but said it’s in the process of hiring more judges. There are currently 332 immigration judges nationwide, up from 273 in September 2016, according to spokeswoman Kathryn Mattingly.

In March, Trump signed a spending bill allocating an additional 100 immigration judge positions.

The efforts are part of the Trump administration’s push to slash the backlog in immigration cases in half by 2020. Aside from hiring more judges, the Department of Justice plans to use new technology — such as videoconferencing — and increase judge productivity by setting case-completion quotas, according to a 2017 Washington Post report. The agency also planned to tap retired judges to fill in on days when certain courts would be empty, the report said.

This week, Operation Streamline — a controversial federal program that orchestrates expedited deportation hearings for undocumented border crossers — arrived in California.

Patel, who retired in 2012, said retired judges are the best fit because they’ve already been vetted and have the security clearance and experience to take on the cases.

“The attorney general has the authority to appoint immigration judges,” she said. “Why not appoint some of the retired federal judges for a limited period of time to clear out this backlog?”

Patel was nominated to the U.S. District Court for the Northern District of California by President Jimmy Carter in 1980, becoming the first woman judge in the history of the district. She served as chief judge of the district between 1997–2004 — also the first woman to hold that post.

In one of her most notable civil rights cases, Patel in 1983 overturned Japanese-American Fred Korematsu’s criminal conviction for disobeying government orders to leave his Bay Area home and enter an internment camp during World War II.

Jensen, who also spent decades on the bench, was a deputy U.S. attorney general during the Reagan administration in the 1980s and a former Alameda County District Attorney. He retired in 2014.

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