New Bay Area Immigration Court Opens, Aims to Tackle Deportation Backlog

The nation’s newest immigration court opened for business this week in the East Bay city of Concord after federal authorities decided the San Francisco Bay Area needed more resources to cope with a growing backlog.

The move adds 21 new courtrooms to help ease the burden at one of the nation’s busiest immigration courts across the bay in San Francisco. When it’s fully up and running, the new Concord facility will nearly double the capacity in the Bay Area to hear deportation cases, including asylum claims.

Until now, the 27 judges in San Francisco’s court, with help from a smaller court in Sacramento, have handled all immigration cases from Bakersfield, California, to the Oregon border. With 160,000 pending cases, each case takes more than three and a half years to complete, on average.

The new Concord court is also part of a nationwide effort by the Biden Administration to cope with an unprecedented backlog of more than 3.3 million cases across the country, including a record number of asylum seekers who’ve recently arrived at the U.S.-Mexico border. While observers say new courtrooms and judges should help move cases faster, some worry they could also trigger new problems.

Nationwide Court Expansion Needs More Funding

Since President Joe Biden was elected, the Executive Office of Immigration Review, which is part of the U.S. Department of Justice, has added six new immigration courts and more than 300 judges across the country, building on an expansion that began as immigration enforcement ballooned under the Trump Administration.

The Concord court will start with 11 judges and will continue hiring to reach a full bench of 21, according to officials with the EOIR, as the immigration court system is called.

Mimi Tsankov, president of the National Association of Immigration Judges, said the expansion is welcome and the new Concord court should help deal with “the overabundance of cases that has been inundating San Francisco.”

But she cautioned that just hiring judges would not solve the case backlog by itself. Judges have struggled without well-functioning computer systems, a sufficient number of language interpreters and full teams of law clerks and administrative aides, she said.

“We need court staff to be there, to support the judges and those very fast-moving, time-intensive dockets,” Tsankov said, speaking in her role with the NAIJ, the judge’s union. “Our staff is working nonstop until late hours of the night.”

The Concord facility is “currently staffed to meet all support needs,” according to EOIR spokesperson Kathryn Mattingly.

Tsankov noted that the nation’s 734 immigration judges are working faster than ever. Even though caseloads have grown, judges are closing nearly a third more cases on average than at the end of the Obama years, according to a data analysis by the Transactional Records Access Clearinghouse at Syracuse University. But the judges’ speed is outmatched by the raw numbers of new migrants applying for asylum.

“We’re still not able to outrun the volume of work that comes our way,” Tsankov said.

The Justice Department has asked for a major increase in funding to hire 150 more judges and court staff this year, but Congress has been unable to pass the federal budget. Biden officials also requested court funding in a bipartisan immigration deal tied to Ukraine aid, but Republicans killed that plan last week.

Immigrants Not Receiving Hearing Notices

In Contra Costa County, where the new court is located, immigration lawyers are scrambling to prepare for a swelling demand for legal services. Calls are already surging on a hotline run by Stand Together Contra Costa, a partnership between the county and community groups.

Deputy Public Defender Ali Saidi directs the partnership with a small team of lawyers who provide deportation defense. Meeting with coworkers around a conference table last week, Saidi heard repeatedly that immigrant clients, as well as hotline callers, said they had not been notified by EOIR that their cases were being transferred to the Concord court — and that they had new hearing dates.

Public defender Heliodoro Moreno said he could see in the court’s electronic portal for lawyers that hearing dates for some of his clients have been moved much sooner and delayed for others. He was troubled that his clients had not received a letter notifying them of the change.

“There’s a case that’s only going to have a one-month lead time. And still, there’s no notice to prepare for a hearing, which is quite frustrating for clients like mine that all have attorneys,” he said. “But what worries me is for all those that don’t have an attorney, which are the majority of people. How are those notices happening? It’s worrisome.”

In immigration court, if defendants don’t show up, they are typically ordered deported in absentia.

Court officials said late last week that they were in the process of notifying everyone whose case has been reassigned to the Concord Immigration Court.

“New hearing notices for all cases that have been transferred have been or will be sent to the respondent at the address on file or to the attorney of record,” EOIR’s Mattingly said in an email.

A Scramble to Find Immigration Lawyers

Unlike in criminal court, the government does not provide lawyers for people who can’t afford their own. And presently, less than a third of immigrants facing deportation have lawyers, down from two-thirds just a few years ago — largely because of the increase in new asylum cases from the border.

Saidi’s team includes two public defenders and two immigration attorneys at a local nonprofit, plus funding to hire two more. But Saidi said more than 13,000 Contra Costa residents have pending deportation cases, including a growing number of newly arrived families seeking asylum.

“There’s over a thousand in the last 90 days that have been newly placed into deportation proceedings,” he said. “So, obviously, six lawyers is not enough to handle all of that.”

In addition to local residents, immigrants in deportation proceedings will be coming from all over Northern and Central California as their cases are transferred to the Concord court. And without lawyers, they face steep odds.

“The difference between having an immigration attorney versus not having an immigration attorney has profound impacts on your ability to present your claim fully,” he said.

Under U.S. and international law, asylum is available to people who face persecution in their home country based on their race, religion, nationality, political opinion or membership in a particular social group. Those who pass an initial border screening are placed in deportation proceedings to make their case to an immigration judge.

The majority of asylum seekers lose their cases, but having a lawyer is key: 49% of people with attorneys won, while just 18% of unrepresented asylum seekers did so, according to the latest available data.

Saidi and his team are hoping to follow the lead of San Francisco, where a robust collaboration of 16 nonprofits aims to provide a lawyer for any San Francisco resident going to immigration court.

Milli Atkinson helps lead that network as director of the Immigrant Legal Defense Program at the San Francisco Bar Association. She worries that immigrants will find few legal resources in Concord to assist them with their claims.

“There are very few nonprofits serving the immigrant community in Concord and Contra Costa County,” she said. “In the next year or two, a lot of people will be struggling to find help.”

Atkinson said she’s reaching out to East Bay legal aid groups to offer what she can. And Saidi is teaming up with the organizations in his area. They held a press conference on Monday to get the word out to the immigrant community about what to expect at the new court.

“There’s a lot of confusion and fear, especially in the current climate,” Saidi said. “So we want folks to know that this isn’t a detention center,… understand if their cases are going to be transferred to this new deportation court, and hopefully connect as many people as we can with actual attorneys.”

Stand Together Contra Costa is planning a free legal clinic on March 17. The nonprofit groups seek a nearby storefront or office where immigrants can find information and services. Saidi also asks immigration lawyers to volunteer for an “attorney of the day” program, modeled on San Francisco’s, where attorneys take shifts at court to provide short consultations for unrepresented immigrants.

A Functioning Immigration Court Helps Border Control

Research shows that when immigrants facing deportation have attorneys, not only is the outcome more fair but proceedings are more efficient, as lawyers can guide clients unfamiliar with U.S. immigration law and court procedure.

Saidi worries that with confusion over the last-minute change in venue, a lack of lawyers in his area and a swifter pace in court, it will be tough for immigrants to find representation fast enough, and their chances of winning protection in the U.S. could suffer.

“Folks that are unrepresented being kind of pipelined into a rushed deportation process without access to attorneys?” he said. “That, to me, is a serious due process problem.”

But timely hearings can also be important to due process for individuals — and necessary for the whole U.S. immigration system to work, said Doris Meissner, a senior fellow at the Migration Policy Institute in Washington, D.C.

She is pressing for reforms that would lead to asylum claims being decided in a matter of months rather than years. And she said expanding the number of immigration judges and courtrooms is part of that.

“A functioning, functional immigration judge system is essential today in order for there to be effective border control… that also allows for fairness and timeliness for the people that are seeking protection,” she said.

Meissner said the opening of the new Concord court is a positive step, but Congress needs to invest a lot more money in the immigration courts for the government to be able to manage the border.