The Unmaking of the US Immigration Court System

A new report published by the Center for Immigration Studies describes the undermining of federal immigration courts and outlines recommendations to fix the chaos. Under former President Obama, immigration adjudication nearly halted due to Department of Homeland Security (DHS) policies that prosecuted fewer cases and removed fewer of those ordered removed from the United States, including criminal aliens. Lack of enforcement by DHS was matched by court evasion, resulting over the last 20 years in 37 percent of all aliens free before trial failing to appear for court.

Mark Metcalf, a former judge on the Miami Immigration Court and author of the report, writes, “From 1996 through 2015, removal orders for failure to appear numbered 918,098. Among those who absconded from court were 3,095 aliens from the 36 countries that promote terrorism. A disproportionate number — 338 altogether — came from those countries the US State Department labels state sponsors of terrorism: Iran, Sudan, and Syria.”

Metcalf interviewed immigration judges across the country in writing “Courting Disaster: Absent attendance and absent enforcement in America’s immigration courts“: “They described a system plunged into turmoil by appointees at the Departments of Justice and Homeland Security who ignored statutes, precedent, and regulation and imposed policies that dramatically increased backlogs and nearly halted adjudication. Misusing the tools of ‘prosecutorial discretion’ — justifications for not prosecuting a case — and ‘administrative closure’ — continuances granted to avoid trial — prompted dismissals and ever-growing caseloads.”

Congress and the public were misled by skewed numbers, painting a dishonest picture of court dynamics and displaying an indifference to public safety and national security. The high number of those abandoning their cases—without fear of incarceration or removal— was artificially reduced by a political numbers game. The difference between the actual absconding rate and the rate reported to Congress understated court evasion in some years by more than 100 percent.

Metcalf writes: “In a time of porous borders, drug cartels, alien smuggling, human trafficking, immigration fraud, and a still-raging War on Terror, gamed numbers conceal risk to national security and compromise to American neighborhoods. They disguise the actual weakness of courts and enforcement in addressing chaotic conditions entirely the making of those in charge.”

Moreover, the actions of the Obama administration over the past 8 years were inconsistent with due process and equal protection among citizens and the foreign-born who reside here legally and illegally. “Were citizens, visa holders, or lawful permanent residents to commit crimes that ICE declared insufficient to arrest and remove an illegal entrant — crimes such as shoplifting and identity theft, low-level DUIs, misdemeanor assaults, and illegal voting — law enforcement response would be prompt and certain … Visa holders would be denied extensions of their US stays or become inadmissible when applying to reenter. Lawful permanent residents would be subject to removal proceedings for committing crimes of moral turpitude or aggravated felonies. ” In many instances, illegal aliens were simply released by ICE, despite committing crimes that would have landed others in jail.

Metcalf concludes his report with a list of recommendations to restore enforcement and bring integrity back to the US immigration courts. His practical reforms include:

• Absconding from immigration courts should result in removal orders that cannot be reopened or set aside.
• Aliens ordered deported should be placed in ICE custody at the conclusion of proceedings pursuant to 8 CFR 241.4 and held through confinement or under strict monitoring until released due to a removal order being overturned or until removed from the US
• The discretion of ICE/ERO (Enforcement and Removal Operations) officials to grant administrative stays of removals that delay aliens’ removal aliens from the US should not be available to Level I and II alien offenders.
• Immigration, asylum, refugee, and visa policies affecting Specially Designated Countries (SDCs) should be reexamined with the purpose of limiting entry of persons who have not passed the same background checks that visa applicants must undergo.

(Source: Center for Immigration Studies)