Gustavo Alzate, a 34-year-old property manager for a New York real estate firm, was desperate after federal agents brought him in chains to a New Jersey jail to await a hearing on deportation charges. The Colombian immigrant used a jailhouse hotline to call in every day to the New York immigration court to find out when he would get a hearing before a judge.
“For a long time, I was told there was no record of my case or me with the court,” he later said in court papers. “No one ever told me when my Notice to Appear form was filed with the court.”
That’s because even though U.S. Immigration and Customs Enforcement agents in New York had arrested Alzate and confined him in the Hudson County Jail in Jersey City, they didn’t get around to bringing his deportation case to the court for eight days, as they now acknowledge. For Alzate, it was Kafkaesque: “This time period was psychological torture for me because I did not know what would happen to me or when.”
Justice delayed can be the justice routine for those ICE chooses to jail during removal proceedings. At immigration hearing locations designated only for detainees, it took a median of six days just for a case to be filed last year—and two weeks after that for a first hearing or bond ruling from an immigration judge, according to data from the Executive Office for Immigration Review, or EOIR, the Justice Department unit that runs the courts as part of the executive, rather than the judicial, branch.
In 11 of the 55 venues that heard more than 500 cases last year, detainees spent six weeks or more in jail before an initial hearing. Such long waits would be unconstitutional in criminal cases; the right to due process requires authorities to not only get a case filed but also to provide an arraignment promptly, generally in no more than 48 hours. That doesn’t apply to deportations, civil cases in which the constitutionally acceptable length of detention without a first hearing has never been defined.
“It’s just one more way, I would say, that immigration cases are like the bizarro-world of American justice, where a lot of things that are taken for granted in terms of checks and balances are just not present,” said Michael Kagan, a law professor at the University of Nevada in Las Vegas and director of an immigration law clinic there. “The result of this is that people who are put into detention and locked up by the government will wait even longer before anyone looks at their case in anything that approximates a court.”
“They told me to ‘wait my turn’ ”
After 12 weeks and two days in jail, Gustavo Alzate finally received a hearing on June 14, 2018 at the New York court for immigration detainees, the Varick Street Processing Center in lower Manhattan. He was later released on bond, and recounted his experience for a civil-rights lawsuit filed on November 15, 2018 over the long waits New York immigration detainees experienced before seeing a judge—peaking at a median of around 12 weeks that summer.
In response, federal authorities admitted in sworn statements that cases like Alzate’s were swamped in dysfunctional bureaucracy at the Homeland Security and Justice departments.
But they insisted they were already fixing the problem, and pledged that 20 days would be the “outer limit” from arrest to first hearing in all cases at the Varick Street court: three days after arrest for ICE to file the charging document, a Notice to Appear, in court, and then no more than another 17 days for the initial master calendar hearing.
“This is the word of the agency under penalty of perjury, that this is their policy … This is their outer limit,” Assistant U.S. Attorney Brandon Waterman told Judge Alison Nathan at U.S. District Court in Manhattan. On Sept. 30, the judge issued an interim order holding the government to that pledge in New York, and setting up a monitoring system.
While the New York court has since shown sharp improvement, delays in other venues not under judicial scrutiny routinely exceed the “outer limit” the government conceded was adequate protection for ICE detainees’ constitutional right to due process. If the judge’s order had been national in scope, the government would have had to report violations in 17,447 of the 39,785 cases (43.8 percent) receiving a first hearing in the six months after the order, records show.
That is one of the results from a Daily Beast analysis of EOIR data on removal proceedings in 127 hearing locations that, like New York’s Varick Street Processing Center, handle only detainee cases. It showed:
—Among the 55 venues that handled 500 or more detainee cases last year, the longest waits from arrest to initial hearing were in hearing locations at privately run lockups under contract with ICE: Winn Correctional Center in Winnifield, Louisiana, a median of 140 days; T. Don Hutto Residential Center in Taylor, Texas, 72 days; Richwood Correctional Center in Richwood, Louisiana, 64 days; Jackson Parish Correctional Center in Jonesboro, Louisiana, 58.5 days; and Otay Mesa Detention Center in San Diego, 56 days.
—The 20-day “outer limit” from arrest to first hearing was attained as a median—that is, in half the cases—in just 15 of those 55 locations last year. New York achieved a median of 17 days, down from 67 days in 2018.
—In 10 major venues handling a combined 10,714 cases, detainees spent a median of 35 days in custody before the cases heard last year were filed.
Officials at ICE and the EOIR did not respond to questions about this. Both cited the New York lawsuit as their reason for not commenting.
“EOIR continues to leverage its resources in the best way possible to address the ongoing influx of Notices to Appear created from DHS enforcement actions upon individuals who enter—or attempt to enter—our country illegally,” spokeswoman Kathryn Mattingly said in an email, declining to comment further.
But in documents filed in the New York lawsuit, officials from both agencies opened a window on the messy reasons for the delays.
ICE officials acknowledged that they couldn’t handle the volume of arrests their own agents made; the major clog was in getting a legal review from the agency’s understaffed legal unit.
That can take weeks, as Jamaican immigrant Andrew Quarey learned. ICE held him in the Orange County Jail in Goshen, N.Y. for 35 days, many of them spent in the medical unit, before the charges against him were brought to the immigration court in Manhattan. Then it took another 44 days before he was finally able to see a judge on January 9, 2019.
Quarey, 48 at the time, said in a statement filed in court that he was suffering excruciating pain from a knee injury that was aggravated as ICE agents arrested him. While jailed, he called the immigration court daily to try to find out when he would get a hearing; the date ICE had written on his Notice to Appear was wrong, and it came and went. “I also asked ICE officers about five or six times when my court date would happen,” he said. “They always told me that they had no idea and I would need to `wait my turn.’”
“Slipping through the cracks”
This pattern of holding people in jail for so long just to get a case filed in court has taken on a special urgency because of the novel coronavirus pandemic.
For example, civil rights groups cited the danger of COVID-19 in a lawsuit filed April 15 at federal court in Laredo in behalf of Raul Garza Marroquin, a 78-year-old Mexican-born man, saying he had been held at the Port Isabel Service Processing Center in Los Fresnos, Texas, without receiving an NTA. It took six weeks for ICE to file his NTA, said his lawyer, Carlos Moctezuma Garcia.
Garza, a legal permanent resident who had been living in the United States for some 40 years, was returning from a trip to Mexico when he was held at the border on March 13. ICE had simply not responded to requests to release Garza during his deportation proceedings, said Garcia, adding that he was released after a judge terminated his removal case on May 27.
But even in more ordinary times, delays are not only potentially unconstitutional and anguishing for immigrants and their families. They are also costly for taxpayers.
ICE was paying $110 a day to jail Alzate as he waited 85 days for a first hearing. Had the wait been the 20 days that federal officials in New York are now committed to, the government would have saved $7,150—millions of dollars when such delays are multiplied by thousands of detainees.
EOIR officials point out that immigration law requires that immigrants be given 10 days to prepare for a first hearing after being served with an NTA. But even those who check a box on the form saying that they want a hearing right away often don’t get one, court records show.
Once a case arrived in court, it joined the cases piled up in the EOIR before being entered manually into the computer system.
Administrators traced New York’s delays to a nearly 50 percent increase in new cases from 2016 to 2018 along with staffing shortages, clerks untrained in complex procedures and broken video equipment needed to hold hearings from a jail.
Many of the steps the government took to deal with the problems were elementary.
For example, the New York offices of ICE and the EOIR created logs to track each Notice to Appear, or NTA. Assistant Chief Immigration Judge Daniel Daugherty wrote that this helped to prevent cases from “slipping through the cracks.” And at ICE, the key change was to have agents file cases directly with the court, instead of waiting for an in-house legal review.
Federal officials denied in court papers that the lawsuit had spurred their actions.
But Peter Markowitz, an attorney for the plaintiffs and a professor at the Benjamin L. Cardozo School of Law, said they had known about the problem for years and done nothing. “I think that scrutiny that was brought upon the agencies through this lawsuit, having to account for their practices in public proceedings before a federal judge, caused them to try to get their act together,” he said.
Despite wait times twice as long as at any other lockup, ICE is rapidly expanding its use of the Winn Correctional Center, a sprawling, privately run lockup located amid the pine and cypress groves of the Kisatchie National Forest in Louisiana. Detainees there face waits far longer than those that produced alarm in the New York court in 2018. When a first hearing is finally granted, it’s done from a video-equipped conference room connected to a judge in San Diego.
“Winn’s awful. Winn’s the worst,” said Nathan Bogart, a Fayetteville, Arkansas lawyer who practices at Winn and other immigration hearing locations based at rural Louisiana jails. “I don't think there is any doubt about that.”
Having the venue administered from afar slows the process. “That in itself is just a logistical nightmare,” Bogart said. But the isolated location makes everything more difficult. Until recently, motion papers had to be mailed to San Diego (due to COVID-19, the papers can now be emailed).
Like Winn, LaSalle Correctional Center in Jena, Louisiana, is run by LaSalle Corrections. The EOIR venue there does have its own judges; cases move from filing to first hearing with relative speed, a median of nine days last year. But it takes a long time for the charges to be filed, a median of 19 days.
It, too, is isolated. “No place to stay, or eat breakfast,” Bogart said. “There’s a nice gas station they opened near LaSalle.”
Bogart said he can’t help wondering if such an inconvenient site was chosen to limit the detainees’ access to legal help. “It’s hard not to feel like it’s intentional.”
Otay Mesa, the parent court for Winn, is being scrutinized in a lawsuit similar to the one involving delays at New York’s Varick Street court. Filed in 2017, it is now moving forward at federal court in San Diego.
In rejecting the government’s move to dismiss the case, U.S. District Judge Cynthia Bashant ruled that the allegations were serious enough to “shock the conscience,” a legal standard necessary for the suit to proceed.
One case the judge cited was for Ana Maria Hernandez, a 34-year-old mother of two when ICE arrested her in Escondido, California in 2017. She said she immediately told ICE officers she wanted to see an immigration judge, but in an affidavit she signed a month after her arrest, said she had not yet been given even a Notice to Appear in court, much less a hearing.
Bardis Vakili, an attorney at the ACLU of San Diego and Imperial Counties, which filed the suit, said it’s common to call the Otay Mesa court to ask for the date of a client’s initial hearing and be told the case is not yet “in the system.”
The reasons for such delays have long been apparent to officials at both the Homeland Security and Justice departments—as far back as 2001, EOIR had deemed it “essential” to set up electronic case filing, which is still not available in many courts. The Trump administration’s “zero tolerance” immigration policy has contributed to a steady increase in backlogged cases.
In March 11 congressional budget testimony acting ICE Director Matthew Albence said there are “severe structural staffing shortfalls” in the legal office that reviews the cases agents bring in.
The Justice Department was forewarned of the consequences of increasing the caseload. In 2017, a consulting report told EOIR of precisely the bottlenecks that it acknowledged in the New York lawsuit two years later.
Such disorganization also seeps into the data EOIR maintains, according to outside reviewers. A 2017 Government Accountability Office report said that 16 percent of the cases put into the EOIR computer system from 2006 to 2015 appeared to have unreliable starting dates.
To deal with such questions about EOIR data—and more recent disclosures that it may be incomplete—we have created a database of 365,177 removal cases from January 2016 to March 2020 for people who were detained or who had been detained initially and released. EOIR discloses the data on its website in response to Freedom of Information Act requests by the Transactional Records Access Clearinghouse at Syracuse University.
We’ve worked with median numbers rather than averages, since averages would be more thrown off by inaccurate or atypical data. And we excluded cases in which the hearing date or detained date was missing. The first hearing date was for the “master calendar” hearing or, in a smaller number of cases, a bond determination if that came sooner.
The larger question behind this mass of numbers is why DHS is detaining so many people when both its legal office and the court lack the staffing—not only judges but support staff as well—to handle them.
“I would just say, they are the prosecuting agency and in this context, they have complete control over the timeline,” said Aaron Hall, an immigration lawyer who practices at the court in Aurora, Colorado, which has had substantial delays. “If the charging document isn’t ready to go, why are they arresting them?”