Broken Immigration Courts

By Mark Krikorian on June 6, 2011

National Review Online, June 6, 2011

Imagine a court system in which defendants routinely fail to show up and suffer no consequences. Where orders issued by the courts are routinely ignored. Where deceptive statistics are reported to Congress. You’d call that a crisis, wouldn’t you?

But it’s just another day in the life of America’s immigration courts.

These administrative tribunals are part of the Justice Department’s Executive Office of Immigration Review and include more than 250 judges considering hundreds of thousands of cases a year involving aliens seeking asylum or other forms of relief from deportation. And yet this system, like much of the rest of our immigration apparatus, resembles the old Soviet joke, in which employees pretend to work and bosses pretend to pay them. They are, in the words of former immigration judge Mark Metcalf, “play courts” — and America’s sovereignty and security are too serious matters to be treated as a game.

For the Center for Immigration Studies (my immigration-policy institute), Metcalf has written “Built to Fail: Deception and Disorder in America’s Immigration Courts,” a report that documents this dysfunction. And documenting it was no easy task, since the Justice Department systematically massages the statistics about the immigration courts in such a way as to downplay how bad things are. At the panel discussion about the report’s release, National Review Online’s own Andy McCarthy was blunt about the false impression put forth by DoJ:

Remember, the Justice Department is responsible for enforcing the laws against fraud, the laws against false statements to government agencies, the business-disclosure regulations. The Justice Department — I can say this confidently as a prosecutor who worked on cases like this for a long time — the Justice Department would never in a million years tolerate the kind of pervasive dissimulation — lying, frankly — that goes in the statistics that the Justice Department is itself putting out to report to Congress what’s going on in the immigration system.

And when you see the real numbers, you can see why they’re lying. Between 1996 and 2009, fully 40 percent of all aliens allowed to remain free until their immigration hearings failed to show up for court. From 2002 to 2006, in the wake of 9/11, when you would have thought there would have been greater attention to such things, 50 percent of all aliens who were free pending trial disappeared. The worst years were 2005 and 2006, when 59 percent of such aliens didn’t appear at their hearings.

To illustrate DoJ’s deceptive record-keeping, that last figure was reported as “only” 39 percent. What Eric Holder’s number-crunchers did was add those foreigners who were free pending trial to those being held in custody (who have no choice but to show up in court) to get a larger denominator — that way, the immigration equivalent of bail-jumpers seem to be a smaller portion of a larger overall number. But what matters to policymakers and others interested in the functioning of the courts is what share of those not held in custody actually honor the requirement to appear. But until Metcalf got deep into the statistical weeds, there was no way to know that.

Such dishonest reporting extended to the actual work of the courts. In an attempt to show how tough this administration and its predecessors have been on foreign scofflaws, DoJ reports that, during the period FY 2000-09, aliens won only 20 percent of the time. In fact, here too DoJ is playing the game of inflating the denominator, by mixing aliens who are challenging their deportation with those who are not contesting the government’s attempt to remove them. The question that actually matters in this case is what share of aliens who are trying to stay get favorable judgments from the immigration courts. And Metcalf found that number to be 60 percent: More than half of those foreigners who don’t want to be sent home get to stay.

The fuzzy math continues in the next stage of the process, appeals. Since 2000, DoJ says only 8 percent of trial-court decisions were appealed to the Board of Immigration Appeals, the administrative body one step up from the immigration courts. In fact, of the decisions that ordered that an alien be removed from the country, 98 percent were appealed. No wonder the unofficial motto of the immigration bar is “It ain’t over till the alien wins.”

Finally, what about deportation orders issued by the immigration courts? Well, it turns out those are largely ignored. There are 1.1 million unexecuted removal orders — foreigners ordered to be sent home who haven’t left. That’s up from 2002, when there were “only” 600,000.

None of this should be news. Although Metcalf has performed a great service in extracting the real numbers from the Justice Department’s farrago of apples and oranges, his voice joins others that have been raising the alarm for some time. Judge Ed Grant of the BIA, for instance, said in 2006: “All should be troubled by the fact that only a small fraction of final orders of deportation and removal — entered after a hearing before an immigration judge, with right of appeal to the Board of Immigration Appeals — are actually executed.”

All should be troubled, but not enough really are. Until that changes, we can expect more of the same.