The number of pending cases in US immigration courts hit a record high this year and the trend shows no sign of slowing down.
With more than 700,000 open cases as of May, judges face a heavy case load. To alleviate the burden, two retired federal judges have proposed a solution: bring jurists like them back to the bench.
“We certainly have the expertise. We’ve handled heavy dockets of cases and we’re accustomed with having to get up to speed very quickly in various areas of the law,” retired US District Court Judge Marilyn Hall Patel said.
Patel and retired Judge D. Lowell Jensen sent a letter with the recommendation earlier this month to Attorney General Jeff Sessions and James McHenry, director of the DOJ’s Executive Office for Immigration Review. The Department of Justice did not respond to a request for comment on Thursday night.
“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. 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 pair wrote in a letter dated July 12.
Retired judges have been vetted before so the process for obtaining security clearances wouldn’t take as long as it would for new appointees, the letter said. And because federal judges receive an annuity from the government, they could potentially “volunteer” their time without drawing a salary, Patel added.
They also bring experience in immigration law from their time on the bench and other chapters of their career, Patel said. She worked as a DOJ attorney for the Immigration and Naturalization Service from 1967 to 1971. She served as district court judge for 32 years before retiring in 2012.
Like many federal judges, especially those in large metropolitan areas or near ports of entry, Patel said she handled various immigration matters: asylum cases, deportations, removals and petitions for release, or habeas corpus. None in particular stand out – “they sort of merge all together,” she said. But one of her cases resurfaced after she retired, through the Trump administration’s travel ban.
In 1983, Patel overturned Japanese-American Fred Korematsu’s criminal conviction for disobeying government orders during World War II to leave his Bay Area home and enter an internment camp. But the infamous 1944 Supreme Court decision that blessed the internment of Japanese-Americans during World War II remained intact – until Chief Justice John Roberts announced that the court was overruling it in its ruling upholding the travel ban.
Otherwise, Patel said she has kept a relatively low profile, with a few speaking engagements and some consulting work here and there. But as controversy and caseloads grew along the southern border, she felt compelled to act, she said. She contacted Jensen, who served on the federal bench for 28 years, who agreed to co-sign the letter.
“We urge you to utilize this considerable resource since we know that vetting and appointment of new [immigration judges] will take some time, and time is of the essence to meet the crushing burden of pending and new cases,” the letter said.
Patel said she had yet to receive any response from the government.
“I’m not holding my breath,” she said. “I know federal judges are perceived as being very independent and that may not be to the liking of the attorney general or the Department of Justice at this time.”