Built to Fail

By Mark Metcalf on August 1, 2011

Below is the unedited version of an op-ed that appeared in: Lexington-Herald, July 24, 2011.

President Obama’s recent call for comprehensive immigration reform and its echo in more recent Senate hearings is really not reform at all. All the back and forth in Washington largely misses the point that America’s immigration system is upside down. No better example of this topsy-turvy failure is its immigration courts. In the words of their frustrated judges, they are "play courts." In reality, they are courts that are built to fail.

Since 2008, unexecuted deportation orders have increased from 558,000 to 1.1 million. From 1996 through 2009, 40 percent of all aliens the U.S. allowed to remain free pending trial—770,000 out of 1.9 million—vanished before their hearings. In the five years following 9/11, 50 percent of all aliens outside custody disappeared. Immigration courts are helpless to reverse this. Courts are impotent—so feeble, in fact, that they cannot enforce their own orders. And the Justice Department─the flagship agency which manages the courts─never reported any of this.

The courts’ yearly accounting to Congress is a sham. Numbers from DoJ have masked the courts' disarray at a time in our history when the need for accurate reporting could not be greater. Results are predictable. No-show litigants, unenforced orders, listless caseloads, tardy relief for the worthy and at-risk American neighborhoods for the law-abiding have become standard fare for a system that nurtures scandal. Judge Edward Grant of the immigration appeals court says it best. “All should be troubled by the fact that only a small fraction of [deportation orders]...are actually executed." And he was right. DoJ’s Inspector General reported in 2003 that no more than 3 percent of asylum seekers ordered removed were actually deported. Other numbers reveal a fiscal quagmire.

Federal spending for America’s immigration courts over the last 24 years has multiplied. In 1987, courts were budgeted at $20.5 million. By 2010, Congress authorized $298 million for them—a 1450 percent. Despite this spending, enforcement softened and illegal populations climbed. In 1989, the Government Accountability Office (GAO) stated 2.2 million illegal aliens resided in the U.S. By 2007, the Census Bureau found 12 million present in the U.S.—a 545 percent increase over 18 years. But softened enforcement has not produced softened costs. In 1987, $265 million in federal spending was committed to immigration enforcement. By 2009, Customs and Border Protection (CBP) received $7.7 billion and Immigration and Customs Enforcement (ICE) got $4.3 billion for their security initiatives—an increase of more than 4500 percent. Despite all this spending, courts remain ineffective, borders unsecure and illegal entry unchecked.

Immigration is vital to America. Energy, innovation and entrepreneurial zeal—all playing out on the canvas of freedom that defines America—prove a nation welcoming beyond any the world has ever seen. America accepts more lawful permanent residents and new citizens each year than all nations of the world combined. From 1820 through 2006, 72 million immigrants journeyed to the U.S. Thirty million foreigners visit each year and, more importantly, take home our still shining example to the world. Between 1995 and 2005, 25 percent of all Silicon Valley startups had at least one immigrant founder. Together these businesses grossed $52 billion in sales and created 450,000 jobs. Our wealth is counted in other ways, too. Twenty percent of America's Medal of Honor recipients—716 out of 3408—are not native sons, but those we adopted. Moreover, they adopted us.

The goal of immigration done right is diminished by a Justice Department that cannot square with the American public. More precisely, court executives—executives who have sanitized yearly reports and standardized dysfunction—have failed and an entire court system struggles with their deceit. Courts built to fail are not the product of accident. They are, instead, the result of neglect and intent—neglect by allowing things to get this way and intent by disguising the truth inside numbers that camouflage disorder and impair liberty. If those who report the courts were as brave and as trusting of the American people as are the many that leave home to risk all on the promise of our exceptionalism, we’d have better immigration courts and even better immigration.

In one respect, at least, President Obama is right. Reform is needed.

Mark H Metcalf served in several posts at the Justice Department and Defense Department under President George W Bush. His last appointment was as an immigration judge in Miami, Florida.