EAGLE PASS, Texas – The June 2012 cocaine bust of Guillermo Campos-Borjon in this gritty town perched on the Rio Grande might have looked like just another one of the 20,000 drug seizures federal border agents made in the Southwest last year.
But relying on an obscure part of U.S. immigration law, Campos-Borjon became the first participant in an experiment that reformers hope will help transform the costly and sluggish deportation system.
Like thousands of other immigrants and green-card holders convicted annually of deportable crimes, the construction worker, who has pleaded guilty to a drug smuggling charge, normally would face an immigration judge after a prison stint.
Instead, Campos-Borjon, a legal U.S. resident with no previous criminal history, is facing a federal district judge this summer and, if the new system works, a shorter prison sentence and a quicker deportation to his native Mexico.
Launched this year in western Texas, the program hinges on a frequently overlooked provision of U.S. immigration law that allows federal courts, rather than immigration judges, to order the deportation of immigrants who have committed serious crimes and don’t want to fight to stay in the country.
Supporters say the program could save money on prison and jail costs and other court expenses while extending constitutional rights that noncitizens generally don’t have in immigration court.
“If the defendant is willing to do it, why would we not want to deport them?” said U.S. District Judge Alia Moses, who is spearheading the program from Del Rio, about 55 miles northwest of here.
Del Rio and the other six court divisions in western Texas, stretching from San Antonio to El Paso, handled the highest number of criminal defendants of all the 94 U.S. judicial districts last year, according to the Administrative Office of the U.S. Courts. Del Rio also is where Operation Streamline, a program to prosecute immigrants caught sneaking into the country, began in 2005.
In the new program Moses is spearheading, the deportation process starts before the defendant is sent to prison. That gives deportation officers a jump on obtaining travel documents to the immigrant’s native country, which often can be a time-consuming and laborious effort. It could save months, if not years, in some cases. When the defendant accepts the arrangement, he or she waives the right to appeal.
The effort to enlist the nation’s 600-plus federal judges to take on more immigration-related matters comes at a critical time for the flooded courts – and as Congress contemplates legislation to overhaul how it treats immigrants who come into the country without authorization.
As of April, the U.S. was facing a backlog of 327,406 immigration cases – the most ever – with 13,885 of those involving immigrants in custody, according to the Justice Department’s Executive Office for Immigration Review.
One proposal in Congress calls for hiring 225 immigration judges over three years on top of the roughly 250 already on the bench. But if Congress grants legal status to millions of immigrants now living in the U.S. without documentation, it could place newfound burdens on an already-taxed immigration system, courts included.
The courts are so backed up in some places that noncitizens facing deportation won’t see an immigration judge for a first hearing for years, including in Phoenix where there is a five-year wait, until 2018, according to the Executive Office for Immigration Review.
For those who are not in custody, it typically takes about 17 months for a case to reach resolution, according to a 2012 report by the Justice Department’s Office of the Inspector General.
A hiring freeze and attrition have left the immigration courts short-staffed and facing “a tsunami of retirements” in the coming years, said Dana Leigh Marks, president of the National Association of Immigration Judges. The system has about 50 fewer judges than already authorized by Congress.
Moses, a former federal prosecutor, said the program is designed to handle 30 to 50 removal orders a month initially. She said she could possibly handle as many as 90 monthly and anticipates ordering somewhere between 400 and 700 removals a year. She has a total caseload of 2,200, one of the largest in the country.
“You have to think outside the box and look at different ways to do your job in an effective and efficient manner and use the resources in hand,” said Moses, who first pushed for the pilot program in 2007.
Kathryn Mattingly, a spokeswoman for the immigration courts, said judicial removal orders would not have a major impact on the current pending caseload. But the increased involvement of federal judges could keep some additional cases from being added to the backlog.
That it took six years to launch the program comes down to bureaucratic entrenchment. The U.S. Justice and Homeland Security departments resisted the effort because it seemed like more work and took away some of their authority, Moses said.
“Common sense just doesn’t work that well with the federal government,” she said. “Everybody realizes there’s more than enough work and statistics to go around and in light of the budget, let’s give it a whirl.”
Justice Department spokesmen in San Antonio and Washington, D.C., declined to comment on the program. Anthony Colton, Campos-Borjon’s attorney, also declined to comment on the new program or his client’s situation.
An Immigration and Customs Enforcement official said the agency doesn’t have an estimate on the amount of savings it would have but said the program, which has internal support, would be cost effective.
No court has implemented in a systematic way the provision that allows federal judges to order criminal immigrants removed from the country. That part of the law has been on the books since 1996, the last time Congress tweaked the nation’s immigration laws with a focus on tougher enforcement and quicker deportation.
Since then, federal judges have signed off on the orders sporadically, most frequently in drug trafficking, terrorism and various fraud convictions, according to a Center for Investigative Reporting review of nearly 200 court cases that used judicial removal orders.
David Martin, a University of Virginia law professor and former top Homeland Security Department attorney, said the provision fell out of favor because it required action by federal prosecutors, many of whom thought they had enough to do with a basic criminal caseload. Instead, they deferred to the immigration courts, Martin said.
But with immigration receiving more attention, a recent U.S. Supreme Court decision that requires criminal defense attorneys to advise their clients on the implications of pleading guilty to deportable crimes and a more engaged Justice Department, it’s started to receive more interest, Martin said.
“On the merits, it makes sense to make better use of this procedure,” Martin said. “And I would expect judges and U.S. attorneys, once they have some experience with it, would seek to use it more and more.”
The program also gives deportable criminal defendants more constitutional rights, including court-appointed access to an attorney, than they’d generally have in immigration court.
Laura Lichter, president of the American Immigration Lawyers Association, a trade group, said that despite its potential, shortcuts like a judicial order of removal aren’t perfect, either.
In these cases, a plea agreement requires a judge, federal prosecutor, immigration agent and defense attorney to sign off. Defendants like Campos-Borjon must agree to be deported once they serve their time in exchange for lighter sentences. They also give up all claims to asylum or citizenship.
“On one hand, part of me kind of likes this because it’s in a ‘real’ court, with better due process,” Lichter said. “But there are also people … in a gray area where they would have relief (from deportation) but need a waiver (from an immigration judge).”
This story was edited by Robert Salladay and copy edited by Nikki Frick and Christine Lee.
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