In a recent post, I decried the lopsided state of affairs favoring aliens when it comes to lawsuits because of the way the legal concept of "standing" to sue is construed by U.S. courts.
Astute readers of blog posts at our website, and the occasional news article, will often note that aliens are still in litigation in the courts over actions (such as denial of status or outstanding orders of removal) that happened years in the past — and yet the mere fact of filing, often repetitive filings, with the courts delays any capability of the government to put any bite into its bark where enforcement of the immigration laws is concerned.
The heavy tilt in favor of aliens is so well known that, as I've noted before, there is, and has been for years, a saying among immigration officers: "No case is over until the alien wins."
Here are a couple of unsettling 2018 statistics, courtesy of the Administrative Office of the U.S. Courts:
- Seventy-five percent of criminal appeals involved four offense categories: drugs, immigration, firearms and explosives, and property.
- Appeals to the federal circuits from decisions of the Board of Immigration Appeals (BIA) accounted for 86 percent of administrative agency appeals and constituted the largest category of administrative agency appeals filed in each circuit except the D.C. Circuit.
Now consider that these disturbing figures are actually an underrepresentation of how significantly immigration matters are burdening the finite resources of our federal appellate courts. This is because a number of immigration civil cases don't fit into the neat category of "administrative agency appeals". For instance, multiple lawsuits filed against the government don't relate to specific cases, but rather policies and operational procedures — examples include the "travel ban", "sanctuary funding", refugee admissions and placement with the states, the legality of DACA, termination of various temporary status programs, etc., etc. The list is nearly endless.
Consider, also, that the burden is equally onerous with the lower federal courts, for the simple reason that many types of litigation only wind their way to the circuit appellate courts after extended litigation in the district courts, where they must of necessity begin.
Finally, consider that no matter what the level in the federal judiciary — district, appellate, or even the Supreme Court — there is only so much bandwidth available. Each time a case is brought, that bandwidth is diminished, reducing the amount of other litigation that can effectively be entertained by the courts, and creating significant backlogs for all litigants. And where acceptance of the cases is optional, such as at the U.S. Supreme Court, what this may very well mean is that by accepting certiorari of an immigration matter, the court must of consequence reject a case that would otherwise be meritorious enough to be heard.
We hear a lot these days about the notions of criminal justice and sentencing reform. Any number of bills have been introduced into one chamber or the other in the Congress. And yet no one has raised the question of whether it is time — past time — to entertain the question of civil justice reform and whether alien access to the federal courts is out of balance. How many bites at the apple should an alien reasonably be given? At what level, and for what causes? When should aliens' cases be rejected out of hand as presenting a point of settled law, or as frivolous and dilatory in nature?
I'm sure merely raising the specter of civil justice reform where immigration matters are concerned will raise a howl among various advocacy groups that I'm interested in "destroying" due process for aliens. Not so.
But I do question how it is that access to our federal courts has gotten so out of balance that, in the interest of "due process", aliens and their advocates are not-so-slowly, but surely, squeezing out any capacity of others to have their own day in court.
And I unambiguously believe that this unfettered, nearly endless access to the courts has been destructive to the functioning of a national immigration system that, absent any meaningful capacity to deny benefits or actually expel criminal or illegal aliens when an order of removal is issued, has reached the point of paralysis.
When justice is inordinately delayed, it isn't just denied. It is defeated entirely.