Deception and Disorder in Immigration Court

By CIS on May 18, 2011

Contact: Bryan Griffith, (202) 466-8185, [email protected]

WASHINGTON (June 1, 2011) – The Senate Judiciary Committee held a hearing two weeks ago on the immigration courts, the Justice Department's appeals system for aliens challenging deportation. To contribute to this reassessment of an important component of America's immigration infrastructure, a new report from the Center for Immigration Studies examines the serious problems in our immigration courts and offer solutions to address them.

The report, “Built to Fail: Deception and Disorder in America's Immigration Courts,” is authored by Mark H. Metcalf. Metcalf is a former immigration judge and former Special Counsel at the Domestic Security Section within the Justice Department. The report as well as a transcript and video of the panel discussion are available online at the Center’s website.


Metcalf's report finds that there are inherent flaws in the immigration courts that lead to widespread disregard of its rulings by the aliens who appear before them. What's more, Justice Department statistical reporting downplays these shortcomings, making solutions less likely. Metcalf also offers recommendations for reform.

Among the findings:

  • Very few aliens who file lawsuits to remain in the United States are deported, even though immigration courts — after years of litigation — order them removed.
  • Deportation orders are rarely enforced, even against aliens who skip court or ignore orders to leave the United States.
  • Aliens evade immigration courts more often than accused felons evade state courts. Unlike accused felons, aliens who skip court are rarely caught.
  • From 1996 through 2009, the United States allowed 1.9 million aliens to remain free before trial and 770,000 of them — 40 percent of the total — vanished. Nearly one million deportation orders were issued to this group — 78 percent of these orders were handed down for court evasion.
  • From 2002 through 2006 — in the shadow of 9/11 — 50 percent of all aliens free pending trial disappeared. Court numbers show 360,199 aliens out of 713,974 dodged court.
  • For years, the Department of Justice (DoJ) has grossly understated the number of aliens who evade court. In 2005 and 2006, DoJ said 39 percent of aliens missed court. Actually, 59 percent of aliens — aliens remaining free before trial — never showed.
  • Since 1996, failures of aliens to appear in court have never dipped below 30 percent.
  • Immigration judges cannot enforce their own orders. Department of Homeland Security (DHS) officials may order alien offenders arrested and deported. Immigration judges — the system’s sole judicial officers — have no such authority. Judges seldom know if their orders are enforced.
  • No single federal agency is exclusively tasked with enforcement of removal orders. Immigration and Customs Enforcement (ICE) executes removal orders only when its enforcement strategy says so, not — as it should — in obedience to court orders. ICE’s enforcement strategy does not mention immigration courts or deportation orders.
  • Enforcement of deportation orders is now nearly non-existent. Removal orders are not enforced unless aliens have committed serious crimes.
  • Unexecuted removal orders are growing. As of 2002, 602,000 deportation orders had not been enforced. Since then, another 507,551 have been added to the rolls. Today, unexecuted removal orders number approximately 1,109,551 — an 84 percent increase since 2002.
  • U.S. immigration courts rule in favor of aliens 60 percent of the time. DOJ suggests aliens win 20 percent of the time.
  • The Department of Justice tells Congress that aliens appeal deportation orders only 8 percent of the time. In fact, over the last 10 years aliens appealed deportation orders 98 percent of the time.
  • Since 1990, immigration court budgets have increased 823 percent with taxpayers footing the entire bill. Aliens pay no more to file their cases today than they did in 1990.
  • From 2000 through 2007, tax dollars — slightly more than $30 million — paid aliens’ court costs. Taxpayers underwrote the appeals of aliens ordered removed for criminal convictions and fraudulent marriages.
  • U.S. immigration judges carry huge caseloads. In 2006 — the courts’ busiest year ever — 233 judges completed 407,487 matters. All work of DoJ’s trial and appellate lawyers combined equaled only 289,316. By comparison, federal district and circuit courts, with 1,271 judges, completed 414,375 matters.
  • Aliens face the real prospect of not receiving a fair trial. DoJ’s attorney discipline scheme — a scheme applicable only to the alien’s lawyer — denies aliens the right to effective assistance of counsel and fair trial.
  • The only possible way the Justice Department’s misrepresentations will be corrected is for the Government Accountability Office (GAO) to audit America’s immigration courts.
  • An Article I court — a court created through Congress’s constitutional authority over immigration — is the surest solution for those fleeing persecution, while balancing America’s fundamental interest in secure borders and an effective immigration system.