Government Seems to Juggle Financing of Appeals Process to Increase Migration

By David North, December 13, 2012

Maybe I am cynical, or perhaps paranoid, or both, but I sense that the administration may be juggling the financing of two immigration-related appeals systems in such a way as to encourage more immigration.

What follows is convoluted, a D.C.-based version of inside baseball; it may or may not reflect a deliberate bias. I have no evidence that it does, but it certainly looks that way.

One appeals system, if funded fully, would increase the outflow of deportees; another, if fully funded, would bring in additional immigrants, and bring them in more quickly.

The first system is starved for funds, and the second one has been treated more kindly. The two systems do not relate to each other, and are housed in different government departments.

The first appeals system I have in mind is that of the immigration courts in the U.S. Department of Justice. Just about everyone in those courts — and I have sat through many a hearing — is fighting deportation.

A minority of those in court are also in detention facilities, but the vast majority are living their normal (lawless) lives. A fully funded system would move more quickly and those who are about to be deported would be deported faster, thus lowering (slightly) the size of the illegal alien population.

That, of course, would be a good thing, but this is the court system that is really badly funded.

The backlogs are so huge, and growing so rapidly, that an arm of Syracuse University, the Transactional Records Access Clearinghouse (TRAC), has a comprehensive, user-friendly webpage that tracks the size (and growth) of the backlog.

TRAC's most recent data show that the backlog has grown from about 185,000 on September 30, 2008, (just before the start of Obama administration) to 321,000 at the end of this past October.

Yes, some additional immigration judges (IJs) have been hired, but not enough to prevent the backlog from growing larger all the time. For a more thorough discussion of this often dysfunctional system by a former IJ, see Mark Metcalf's Center for Immigration Studies Backgrounder "Built to Fail: Deception and Disorder in America's Immigration Courts".

In contrast to the immigration courts, where virtually all the appeals are from people wanting to avoid deportation, the other semi-judicial system I have in mind fields virtually nothing but appeals from denials of migration-causing applications. Corporations and individuals seeking to overturn staff USCIS decisions rejecting such applications file papers with the Administrative Appeals Office (AAO), a semi-independent arm of USCIS.

AAO, unlike the immigration courts, seems to have secured more funding, which is the implication of an article, by Alan Lee, a prominent immigration attorney, which appeared in the Immigration Daily on December 5:

More Reason to Launch USCIS Adverse Decision Appeals Now.
The latest Administrative Appeals Office (AAO) report shows that USCIS's appeals unit has largely reduced the amount of time that it is taking to adjudicate appeals of adverse decisions. According to the processing time chart, the AAO now processes H-1B specialized occupation appeals in 9 months, L-1 intracompany transferees in 10 months, EB-1C multinationals in 10 months, EB-3 professional and skilled workers in 24 months, and I-601 waivers of inadmissibility in 13 months. Everything else is current. AAO is to be commended for its drastic reduction of times from even our February 2012 article in which we cited that office's problematic handling of H-1B. … This is extremely encouraging news for affected parties receiving negative decisions from the agency as many in the past have chosen to forgo the appeal route because of the long periods of time required to await an appellate decision. As the waiting times come down to more reasonable ranges. … many companies and organizations that disagree with USCIS's decisions will believe it within their capacities to wait for an appeal to go through, and many individual parties may come to believe that they are not necessarily bound by the first decision of the agency.

An "adverse decision" is one that prevents migration. If Mr. Lee is happy about this turn of events, it is highly likely that he thinks that more migration will result.

So the administration finds more money for the appeals system that immigration attorneys think will increase migration, while not funding a similar institution that will speed deportations.

Coincidence? I doubt it.