Justice Delayed Is Justice Denied

By W.D. Reasoner on November 11, 2011

The Arizona Republic recently reported on how the Department of Homeland Security's Immigration and Customs Enforcement (ICE) bureau in Arizona and other western states has backed off of a program of stipulated removal ("removal" is the legal phrase used these days in lieu of "deportation"), in which a deportable alien who would rather go home than wait long periods of time, quite possibly while in detention, signs an agreement stipulating to the legal charges against him, after which an order is issued for his removal.

In this case, ICE was given a sharp nudge by the notoriously liberal Ninth Circuit Court of Appeals, which ruled in favor of a criminal alien that he should not have been removed via stipulation (though they stopped short of ordering his return). It's noteworthy that, 1) the Ninth Circuit is the most overruled federal appellate in the country, when their cases are brought to the Supreme Court for review; and yet 2) the administration did not choose to seek a writ of certiorari so that the case could be reviewed by the Supremes.

According to the Republic article, ICE has in fact decided to expand the cases to which it will apply the appellate court's decision, thus further limiting the number of aliens to whom it will offer stipulated removal – and this is a conundrum, because the program has great value in moving cases forward through an already overburdened system. It is one of several legal tools along those lines available to ICE, although the agency doesn't use them either regularly or efficiently.

Open borders and immigrant advocacy groups are of course delighted both by the Ninth Circuit ruling and by ICE's decision to further limit stipulated removal cases. This is no surprise. They push incessantly for all cases to be brought forward to immigration judges – even though the law provides for a variety of due process mechanisms which can be brought to conclusion much more rapidly than in the immigration courts. They also argue vociferously that ICE detains way too many aliens, who should be released from custody to show up in court on their honor – even though statistics show that approximately 40 percent of aliens who are not detained end up fleeing from the deportation proceedings. And, finally, they then express their horror that cases in the non-detained docket take as long as 14 months before they even begin.

It brings to mind someone trying to pour syrup into an already-full funnel, expressing shock at the sticky mess caused by the overflow, and then demanding a newer, different funnel that they know in advance cannot possibly serve any better than the old one. Of course, this is because it appears to be a deliberate strategy by open borders advocates to clog up the immigration court system to the point of no return and, in so doing, to cause such public outrage that they may then argue that the only plausible resolution is a broad-based amnesty. And it often seems to us on the outside looking in that the Obama administration is complicit, if not an active participant, in this strategy.

There is only one point on which I find myself agreeing with these advocates: the delay in the immigration courts is often interminable and completely unacceptable. Justice delayed truly is justice denied – most particularly for the American people, who deserve a functioning and credible immigration enforcement- and-control regimen in which they can invest confidence.

I believe two things can be done to help ameliorate this state of affairs.

First, ICE must consistently use all available administrative due process tools available to it – as a matter of policy and routine practice – to efficiently move aliens through the system, consistent with the law. This includes expanding by regulation the application of expedited removal proceedings to the extent already authorized by statute. (For more on expanding expedited removal, and other due process mechanisms available in removal proceedings, see my July 2011 Backgrounder, "Deportation Basics: How Immigration Enforcement Works (or Doesn't) in Real Life".)

Second, perhaps it is time for Congress to pass, and the president to sign into law, a "Speedy Trial Act" specifically for removal hearings conducted before immigration judges. Rules of procedure for criminal trials in the federal government, and for virtually every state and territory within our dominion, already have such requirements which are strictly adhered to. Why not apply them to the immigration court? This should satisfy not only the open borders advocates, but also those who are concerned that a substantial amount of the delay attendant to immigration proceedings is attributable to judges who grant too many continuances, and to lawyers for alien respondents who routinely use delaying tactics to buy their clients additional time in the United States.