Panel Transcript: Deception and Disorder in Immigration Court

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Mark Krikorian,
Executive Director, Center for Immigration Studies
Mark Metcalf,
Grisel Ibarra,
Immigration Attorney and Activist
Andrew McCarthy,
Senior Fellow, National Review Institute
Hans von Spakovsky,
Senior Legal Fellow, Heritage Foundation
Transcript by
Federal News Service
Washington, D.C.

MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies. We’re a think tank here in Washington that examines the impact of immigration on the United States.

One of the important components of the immigration system that really isn’t studied very much is the whole appeals mechanism – people who try to fight deportation, go through the immigration court system and the Board of Immigration Appeals and what have you, and it’s just not studied very much.

People, you know, like taking pictures of the fence and all of that. And there’s just not much photogenic, frankly, about the immigration courts, and it just – it doesn’t get the same kind of public attention even though it really is a vital component of any properly functioning immigration system.

Anybody who even casually follows the immigration issue probably doesn’t know anything about the immigration courts, but would sensibly conclude that they probably don’t work very well since nothing else in the immigration system works very well. Well, our author today has direct experience at it and looked at the issue very closely and found out that it’s way worse than you think.

Mark Metcalf is a former Justice Department and Defense Department official, was an immigration judge for a number of years in Miami, and has used that experience, as well as really diving into the data reported about immigration courts and how cases are resolved, and has come to – concluded that not only are there defects in the courts, but there’s also defects in reporting about the defects in the courts.

So, that’s what this report lays out in some detail, along with some constructive suggestions of how to potentially reform it. Commenting on it are some people who have different kinds of experience in dealing with the issue.

Grisel Ibarra is an immigration attorney in Miami, has a sort of 15 minutes of fame when she was arrested during the Elian Gonzalez controversy. And she’s appeared before Judge Metcalf, and so she’s obviously got direct experience as an attorney for the immigrants trying to avoid deportation, and has some thoughts about how that might be improved.

And our two other respondents are Andy McCarthy, senior fellow at the National Review Institute, former federal prosecutor – was involved in the prosecution of the “Blind Sheikhs,” author of a book called “The Grand Jihad.”

And, finally, Hans von Spakovsky, senior legal fellow at the Heritage Foundation, was in the Civil Rights Division at the Justice Department and is – kind of created – he created a position for himself as the unofficial inspector general of the Justice Department from the outside.

So, Mark will present his findings. We’ll have responses to comments from each of the discussants, and then we’ll take some Q&A from the audience.


MARK METCALF: Thank you, Mark. It’s a pleasure to be here and a pleasure to be seated with Mr. McCarthy, who I knew only by reputation before today. And it’s a pleasure to be here with him and the good work that he represents for the people of the United States, and his efforts especially during the war on terror.

And Hans and I go back to our service at the Justice Department when we were on the same team together working on election reform. And it was his skill and knowledge that made my efforts as the special counsel for election reform – he served as the deputy. We later served – several assistant attorney generals – as senior counsel. And appearing with him today is a great honor for me.

And last but certainly not least is Ms. Ibarra. Ms. Ibarra is an authentic refugee from Cuba and from communism and from Castro – the three C’s in Miami. And she never lost a case in front of me, and there’s a reason for that. She is an excellent lawyer. Obviously, as she would tell you, she chose her cases well, but then once she got into court, she was a fierce advocate. And in close cases, advocacy can make the difference between a win and a loss.

And it was always a pleasure to have her in my courtroom. She is the epitome of an advocate. And some people will speak up but few people will go to jail. She was willing to go to jail on behalf of Elian Gonzalez. And not only willing to go to jail, but to go to trial. And she was rightfully acquitted. And that, more than anything else, I think says so much about her character, that it reveals more than just her ability as an attorney but also her character.

And I want to tell you a little bit about the book. It goes about eight chapters. You’ve all got roughly 12 pages in front of you condensed in 10-point type, with some very full end notes. There’s a lot there, and there’s a lot to get your arms around because there’s a lot about immigration that can’t be – that can’t be dissolved or reduced to book forms.

Volumes have been written about immigration. And so, what I’m going to tell you today is just scratching the – it’s not even scratching the surface. We have the greatest immigration system in the world. Let’s put it – we’ll get that out there immediately. We take into the United States each year, legally, more people than the rest of the world combined. That’s how robust our immigration system is on the legal side.

And it says loads about us as nation – lots of good things. Between 1840 and 2006, 72 million people legally immigrated to the United States. That betrays three confidences – displays three confidences: one, our confidence in those who arrive on our shores; two, their confidence in us; and, three, our confidence in the process that we’ve adopted to keep our nation growing in the right way.

Twenty-five percent of the Union Army was foreign-born. Five percent of today’s armed forces are those who were born outside the United States. Twenty percent of the Congressional Medal of Honor holders – 716 out of 3,400 – were born outside the United States. A 2006 census report showed that of those who were foreign-born in the United States, 56 percent of them had incomes between 37,000 (dollars) and more than – slightly more than $90,000 a year.

People who come here the right way, come here to prosper. And those who – many of those who enter today not the right way, especially given the drug cartel information that we all know about, have come here to profiteer. Others are victims of persecution. And Ms. Ibarra can – as she can better testify to that than I. Others are fleeing the lack of clean drinking water, lack of education, the lack of crime-free streets.

I’m here today not to discuss immigration as a subject on the whole, but to talk about immigration courts. And I want to tell you, you’re not getting the straight story about immigration courts. It’s a – these are very American courts and it is a very American story, but it is a story – a compelling one of national purpose – that is betrayed by the court reports that the Congress receives each year. And let me share these facts with you.

First of all, candor is not found in the institutional DNA of EOIR or those who report it through the Justice Department. The real story of these courts and the great work that they do is not written down. Let me share these facts with you.

Prior to 9/11, on average – the five years prior to 9/11 – 35 percent of those who were free pending court never showed. After 9/11, 50.4 percent of those free – those aliens free pending court – never showed. We did not become safer after 9/11. We decidedly become unsafer.

Out of that group, out of that 50.4 percent, there were 45,000 people from nations that sponsor terror that were released by DHS. And DHS reported that it was unlikely that they would ever be deported because they would probably never be found. And that’s in a 2006 report from DHS.

Now, the failure-to-appear rates are important because they describe a dynamic and a trend that you don’t get anywhere else, and you don’t get it out of the reports. I had to dig in to figure out what they were doing.

And what they were doing was this: EOIR did not measure failure-to-appear rates. They measured how many people are ordered removed out of everybody who came to court. And what they did was they mixed together those who were in detention pending trial. The people always come to court.

And so what they did was they took those who were out of court and mixed those that were in jail and, wonder of wonders, failure-to-appear rates looked very, very low. Last year, the 2009 report, which was released of course in 2010, said only 11 percent failed to appear – the overall failure-to-appear rate.

That’s the nomenclature. That’s the buzzword. That’s the phrase they like to use. And they’ve since revised that to now just the failure-to-appear rate. That’s what – they’ve just defaulted to that. But historically they used the overall failure-to-appear rate. Last year they said it was 11 percent, or for 2009 they said it was 11 percent.

When you take those who were free pending court and you looked at how many appeared and how many that didn’t appear, 32 percent failed to appear. That’s within 3 percent of those who failed to appear before 9/11. We’re not making progress here.

Now, grant rates are another issue. The courts historically – and this is another term that they use – advertise themselves as saying that removal orders constitute 80 percent of all orders issued by the court. That much is true. Why is that?

Well, because 75 percent of those who appear before courts never file an application to remain in the United States. They’re in jail. They have no – or so they claim – no avenue of relief, no persecution claim, chiefly. They’re interdicted at the border, and they consent to removal. They never file an application, or in other words, a lawsuit to remain in the United States. So that’s what that’s about.

An Application for Relief – and that’s what it’s called – is nothing more than a lawsuit to remain in the United States. And so, let’s not disguise it with fancy language. It’s just a lawsuit to remain in the United States.

The United States charges them and says, you are removable. And they never dispute it. If they dispute it, they’ve obviously got to be filing a lawsuit. So what happens? Eighty percent of all the court orders are in fact removal orders.

But let’s forget about that 75 percent and let’s go to the group that does file – that do file applications to remain in the United States. When you look at that number, over the last 10 years, 460,000 applications for relief or removal – in other words, lawsuits to remain in the United States were filed.

How many of those were granted? The answer is 295,000 were granted. Slightly better than 60 percent of all applications to remain in the United States were granted. These are not courts that are stingy. These are courts that are generous with relief and with a specific type of relief called a form other than asylum, or called “other relief” in the courts nomenclature.

And these are applications for cancellation and applications for adjustment of status. Very briefly, if you entered the United States as an asylee but you decide there’s somebody I’ve decided I want to marry, you change your application from that of a person seeking asylum to that of a person seeking adjustment of status. That case will go to the judge. He or she will rule on the merits of that case.

That’s adjustment of status, cancellation of removal. You’re either a permanent resident who has committed crimes in the United States, or you are a non-permanent resident, somebody who entered the United States illegally and has been here 10 years without getting into any trouble. That’s cancellation of removal, two forms of that.

Those two forms of removal – 204,000 applications filed, 153,000 applications granted. The courts grant relief 75 percent of the time for these forms of relief. These are not ungenerous courts. These are courts generous with relief who perceive, in the merits presented by attorneys like Ms. Ibarra, that there is something there that causes them to conclude that the United States and its prosecutors are wrong and that they should not be removed.

The last thing I wanted to talk about are appeals, and that’s how Mark led this thing off. What about appeals? The court doesn’t tell you anything about appeals other than the number of those people – or the number of those people who are denied relief at the trial level who appeal to the Board of Immigration Appeals, which is the court of appeals for immigration cases.

Now, they can later be passed on to the Federal Circuit Court of Appeals, and in Miami, all of our appeals went to Atlanta, to the Eleventh Circuit. But what about appeals? Well, specifically this is true about appeals. The court says – or EOIR – not the courts, but EOIR says that appeals are very low, that very few people file appeals.

That’s not true either. The court said last year that 8 percent of all cases were appealed. Well, they were using those big numbers again. People who never even filed a lawsuit were lumped in with that group. Well, you can’t appeal unless you file a lawsuit. And any lawyer in this room knows that in order to file an appeal, you’ve got to have a lawsuit first. You’ve got to have an application for relief.

So let’s just look at applications for relief. Let’s just look at those people who filed lawsuits. In the last 10 years, 204,000 appeals – 204,000 people appealed – 204,000 were denied relief; 200,000 people appealed. Ninety-eight percent of everyone who is denied an application for relief, whose lawsuit is denied, appeals. That is not a low – that’s not a low appellate rate. That’s a very high appellate rate.

But you don’t get that story from EOIR. It’s in their institutional DNA. They cannot tell the truth about their record. And I don’t understand why. Why not tell Congress the truth? Why not tell the American people the truth? We’d have a much better appreciation for immigration and we’d have a much better appreciation for the judges and the lawyers like Ms. Ibarra. But for some reason, they don’t tell the truth, and it doesn’t make sense, but that’s the state of our courts right now.

One other thing I want to share with you, what’s at risk here? At risk is American security. At issue is American openness. And at a disadvantage are our courts. What are needed are courts that rule with authority. When someone is ordered removed from the United States, let’s take that 40 percent that never get any relief. The chances of any of them ever being deported is virtually nil.

Now, the very fine congresswoman from Texas, who was certainly not a Republican and certainly a student of history and of immigration itself, Barbara Jordan, stated this: “Credibility and immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out are kept out; and those who should not be here will be required to leave. For the system to be credible, people actually have to be deported at the end of the process.”

This is – we’re not talking about winners and losers. We’re talking about an effective immigration system that does the right thing by the legal immigrant who comes, who adopts the right measures of entry, and who thrives once doing so.

And those who enter the wrong way, who, in many cases, offer pitiful stories of crime-laden streets, of unsanitary conditions in which they are raised, and they offer the most – in the end, the most compelling case for America to extend its compassion beyond its borders and help in places where we’re not helping. But opening our borders is not the solution, and not fulfilling the purposes of courts is also not the solution.

I’ll finish with this, and then I think the panel has much more to say than I can possibly add. I want to quote to you and show you just how misleading the statements of EOIR actually are. And these statements are consistent with their statements following the war on terror, its advent, though today, through the 2009 reports.

These are in the budget statements. And I quote, “The fight against terrorism is the first and overriding priority of the Justice Department. The application and enforcement of our immigration laws remains a critical element of this national effort. And EOIR” – this is their statement – this is their budget statement – “and EOIR remains an important function with regard to enforcement.”

Now, from 2005 through 2009, EOIR said the same thing using the very same language, justified itself and its budget to lawmakers. But as usual, EOIR’s actions never matched its words. It said one thing and it did another, all the while telling Congress that immigration courts are – and I quote – “the frontline presence” – end quote – in immigration enforcement.

Year after year, court records show that EOIR filed false reports and failed the high calling of federal service. That’s the bottom line here. We’re not getting the straight story. And if we did, we could fix it. But you can’t fix a problem you can’t identify.

The public has a growing sense of unease with what’s going on. Americans are, by their very nature, generous and – if we look at our history – compassionate. But we also are a rule of law nation, and rule of law is nowhere to be found at this time in these courts.

And, Mark, I’ll pass the floor.

MR. KRIKORIAN: Thank you, Mark.

Grisel? Go ahead.

GRISEL IBARRA: Well, I agree with many of the things he’s saying, and I disagree with many of the things he’s saying.

Number one, an application for relief is not a lawsuit. You’re not suing anybody, OK? You’re not – what you’re doing is you are granted the chance to apply for something, and that’s not a lawsuit.

A lawsuit is when I’m fighting against you for something, and I’m not. An application for relief is that I’m saying, look; look at what I have here, look at what I have done, and see if, based on what I have done, I qualify for this relief based on this application. So that’s the number one thing.

Number two, not all illegal aliens enter illegally. A lot of them come with visas and they just overstay. The theory now is to call them “undocumented,” and that’s wrong. To me, an undocumented person is someone who has no documents, who has no papers. If you’re illegal in the United States you have papers. You have the papers that you came in with. They’re just not good anymore because you overstayed your stay or you did something with them that you were not supposed to do.

Immigration courts try to do the best they can with a system that’s archaic. It doesn’t function anymore. I mean, it’s a system that was developed a century ago, almost, and it doesn’t work. EOIR was established in 1983, I believe, OK? Before that, the immigration judges were not even judges at all. They were like immigration officers.

And I’ve been practicing since 1976, OK? I go back to where EOIR didn’t exist. There was only one file. The same file was handled by the officer that arrested you, the trial attorney that presented the charges, and the judge that either deported you or granted you relief.

There were three judges in Miami at that point in time: Foster (sp), Mattingly (sp), and Monsanto (sp). They were all Haitians. I mean, the reason that I got into immigration was that I was raised in Cuba by a Haitian woman so I understood Creole and French.

I went to apply for a job while in law school at Legal Services, and there was all these black people screaming and yelling and the receptionist didn’t know what to do. I got on top of the table, told them all to shut up in French, and she said, whatever you want, you’re hired, OK? (Laughter.)

And that’s how my immigration career began, OK? Then I was married to a lawyer who did everything but immigration and I figured I better get good at it – and thank god I did, because when I got divorced that was all I had left. But the point is, in order to represent a client, the client has to be able to merit the relief based on the application that you’re applying for.

The one thing that is very, very controversial in immigration law is that everything is based on “at the discretion of the attorney general.” “At the discretion” means I do whatever I feel like, OK? That’s what discretion means. If it’s at my discretion that you all sit here, then you stay. If it’s by discretion that I don’t like you, I ask you to leave. And that is basically what happens in immigration courts. Everything is “at the discretion.”

Now, not everyone has the mental capacity to handle discretion. Not everyone can leave their problems at the door and enter a courtroom as he did. He did with – and as you are. And I’m not saying that because you invited me, but it’s true. He was – he was open-minded. Some judges are not open-minded, OK? Some people carry their bigotry into the courtroom. Some of the prosecutors carry their bigotry into the courtroom.

I mean, I remember representing someone with full-blown AIDS and the prosecutor saying to me, how can you represent somebody like that? Homosexuality is a bar to good moral character. I mean, like, what century are you living in? Please, you know? And this is the mentality that they carry into court, that every alien is a bad alien and should stay home, and that’s not – that’s not what should bring you to prosecute a case.

Sometimes the cases that are brought before the court, they’re foolish. I mean, can you believe that someone who takes a toothbrush from CVS on Monday and a pair of tweezers from Walgreen’s on Tuesday has been convicted of two crimes involving moral turpitude and therefore is deportable? It doesn’t matter that you’ve been here for 40 years, but those two crimes make you deportable.

And some prosecutor actually looks at that and says, uh-huh, this person should be deported because the toothbrush and the tweezers increase a taxpayer’s cost of stealing. I mean, please, come on. You know, let’s spend our money on something that deserves it more than that.

And the immigration courts in Miami – which is the courts that I’ve known. I’ve practiced in Miami and I’ve practiced in Texas. Texas is like a zoo. Texas is all poor Mexicans screaming and yelling. And it has – honestly, you can’t fix the system. You can’t. You have to start all over. And even if you start all over, Judge, even if you make it an article – one court like you want, it’s never going to be a quick system because of two things.

Number one, most aliens that appear before the immigration court do not speak English, OK? So you have to hear the case in stereo. You have to hear it in Spanish, or whatever language it is, and then you have to hear it in English. The attorneys have to be sitting there wondering if what their client said is exactly what the interpreter translated and what the judge heard. Now, in my case, I can speak two languages so I understand more or less, but a lot of other lawyers don’t.

And then you get – you get these people coming in from – who are not – I mean, who don’t even speak any language. They speak a dialect. So you have to get an interpreter that goes from the dialect to Spanish, or to whatever it is that – you know, that the person can understand, and then from that to English.

And sometimes you sit there and it’s, objection, Your Honor, objection, Your Honor, because nobody understands what’s going on because what the alien seems to be saying makes no sense as to what the interpreter is saying.

So, I mean, you know, when you have a bunch of little Guatemalans sitting there that each one of them speaks a different dialect, there is no way to hurry the system. There is just now way to make it quick. So that’s not going to happen. You’re not going to find a system that’s quick.

Number two, our system of law allows people to appeal. It’s our right to appeal. That is what our system is based on. If you don’t like the verdict that you got, you appeal the verdict. Now, you can’t blame people for appealing. That’s what they’re trying to do. They’re trying to remain in the United States. And a lot of times, the appeals are successful. I mean, they actually went on appeal.

So, that is the chance that they have. And if they don’t – if the BIA does not affirm their appeal, then they can go to the Eleventh Circuit Court, which is not the best in the world. I mean, the Eleventh Circuit is like – it’s really bad when it comes to aliens. The Ninth Circuit is a lot better, but the Eleventh – but anyway, it’s true. You get up there to Atlanta and, you know, you have a chance in hell of having something granted. But, I mean, take the chance. What the heck? You have nothing to lose.

Now, it is a fact that we have no control over immigration, and we never will. It’s just not going to happen, OK? As long as America is the land of opportunity and the land of freedom, and as long as our tourist brochures show our streets like this and show our bathrooms and toilets, and that kids can go to school, people are going to want to come over here. I mean, that’s just the way it is.

And once they’re here, they like it. They want to stay. And a lot of them are very productive people. Now, I came in through a legal system, and I understand the legal system. But I also understand the yearning of someone who’s persecuted in their country who actually can’t wait to be processed as a refugee because you may die in Bosnia waiting for – you know, for the American consulate to grant you asylum or to grant you refuge, which is what they do.

An asylee is someone who is granted asylum in the United States. A refugee is someone who comes in, OK, under Section 209 as a refugee and gets status in this country.

Now, the one thing that we do have to stop is we have to stop rewarding things that are not correct. Now, women come to this country and, for some idea, they believe that if they just breed like rabbits, OK, they’re going to be able to stay here. And each one of those children costs us a lot of money. We have to teach people that this is – I mean, this is not the way – what’s called anchor babies. And actually they’re no anchor at all because they’ll deport you no matter how many kids you have.

I mean, the idea that a baby would grant you residency was over in 1979 when the regulations changed. But people have to understand that to live in America we have to follow the regulations here. We have to follow the law.

There is no way to control the borders. I mean, unless we do like in “Star Trek” and just say, bzzz – you know, bing them when they cross over, it’s just not going to happen. You’re not going to have a bunch of people being able to control it.

And smuggling is a billion-dollar-a-year industry. I mean, people in Miami pay 15,000 (dollars), 16,000 (dollars), 20,000 (dollars) to have their relatives brought over. So, you know, it’s not going to stop unless we punish the people for doing that. We have to enforce the smuggling laws.

We have to enforce – you just – I mean, Texas, Arizona, California, revolving – I have actually had a client who’s being deported call me and ask me for an appointment for Tuesday. And I said, what are you talking about? You know, you’re in jail. Yeah, yeah, I’m being deported but I’ll be back on Tuesday. That’s horrible. (Laughter.) I mean, I can’t see you on Tuesday. I don’t want you as a client. I can’t do that. I have to report you. Well, go right ahead. It doesn’t matter. Somebody else will see me.

And that’s true. They come – it’s like a revolving door. They come back because we don’t enforce the law. Now, can we enforce the law? No. There are not enough jails to put them in. How many people cross the border every day, Judge? A thousand, 2,000, 3,000?

MR. METCALF: More than that.

MS. IBARRA: OK, fine. Where are you going to put them, OK? Where are you going to house them? You would need to get, like, Greyhound buses and just hold them in the buses or something, or build a tent city. There is no way to hold – and they know that. They know that. They know that if they don’t get in the first time, they’ll get in the second time or the third. And once they mingle with the population, there’s no way to detect them.

We have a center in Miami called Krome. It’s a detention center. Some people actually like it there. The food is excellent. I mean, they have medical assistance, they have beds, they have clean clothes, they teach them art – arts and crafts.

I mean, it’s like – I mean, people have come over and said, I live better at Krome than I did at home. I like it there. And a lot of them – to do, and they appeal their cases and everything else so that they can stay there, because life for them is so hard in their country that they would rather be in jail here than be over there.

But the immigration courts, the way – he saw it from this side. I see it from the other side, OK? I try to be consciences about the people that I represent because this is my country, and these are the people that are going to be with me in my country. And I want them to be people that are worthy to be in America.

I mean, I don’t consider myself a Cuban-American. I am an American. I was born in Cuba but I am an American by choice. I chose to be a citizen of this country. And I love the United States. I don’t want some crap living next to me, some person that’s going to sell drugs or – that’s not what I want for America.

But the judges sometimes are just – their hands are tied. Their hands are tied because no matter what they do, it’s wrong. And I think that the problem that EOIR has, that it doesn’t report what’s actually happening because they’re afraid to report it. They’re afraid that if they actually say what’s going on, they may lose their jobs. I mean, somebody may just come and erase the whole court and fire everybody and start all over.

But the judges do a great job considering the limitations. They also have attorneys that get up there – some of the attorneys can’t even speak English, Judge. Isn’t that –

MR. METCALF: That’s true.

MS. IBARRA: I mean, can you imagine getting up in front of a court – da, da, da, da. How can you represent – but your client doesn’t know that because he doesn’t speak English either.

So, the judges have a very, very hard time handing down their decisions. And, like I said, there’s no way to fix this. It would have to just start all over with a new system more adept to the aliens that we have now.



MS. KRIKORIAN: Thank you, Grisel.


ANDREW MCCARTHY: Thank you very much, Mark. And it’s a pleasure to be here.

I thought the report – Judge Metcalf’s report is fabulous. I want to react to a couple of things we’ve just been discussing.

To begin with, I guess I start from a different premise here, which is that, you know, number one, we’re dealing with a category of people who are, for the most part, entering the United States illegally under circumstances where there is no right to come here in the first place; it’s a privilege to come here, and under circumstances where it has long been the law of the United States that ingress and egress at our borders, the control of who comes into and who leaves the United States, is a matter for the political branches, not a judicial matter.

And that is the reason why immigration is a matter for the Department of Justice, not for, for the most part, for the United States courts. I think if the report shows anything – and it shows a lot of things – it’s that the due process breakdown here is that the American people aren’t getting due process. I don’t come away from reading the report thinking that the aliens in the system are being failed in a major way. I think the American people are being failed in a major way.

And the breakdown here is political accountability to the American people from the branches of government and the components of government that are responsible for enforcing the immigration laws.

You know, I don’t think that “at the discretion of the attorney general” means the attorney general can do whatever he wants. You know, frankly, there is discretion at every part of any political or judicial system. In fact, no one has more discretion in how to handle cases than defense lawyers do.

They have to make a decision, for example, about what facts to emphasize and what legal remedies or defenses to pursue. Discretion is just a fact of life in any system that you can’t have a million antecedent rules in predicting every single possible thing that may ever come up.

The other thing is, you know, I agree that we should be encouraging people to follow the regulations, but how on earth do you encourage people to follow the regulations when their first two encounters with the regulations are entering the country illegally, and then a court system that doesn’t enforce the laws.

If that’s the introduction to American society that the alien gets when he comes here, I don’t think any of us should be too surprised that there is a breakdown more pervasively in whether we follow regulations or not.

To me, as a former prosecutor and someone who worked at the Justice Department for about 20 years, at the U.S. Attorney’s Office in New York, what really leaps out about this report is the, frankly, fraudulent statistical keeping and reporting that the Justice Department does, particularly with respect to notifying Congress of what’s going on in its immigration system.

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.

The business of – just to take one example, which I think is the one that is the most stark from the report – to report what, in the criminal justice system, would be the equivalent of bail-jumping by including the cases of everybody who doesn’t get bail in the first place is, frankly, preposterous.

There’s no way that you can notify Congress of how effective our system of allowing people to be at liberty while their cases get processed unless you explain to Congress that you’re only including the people who get liberty in the first place.

And by mixing these numbers of people who are allowed to be released with the people who are in custody and are, frankly, coerced into coming to court, there’s no way that the American people can understand the gravity of the problem of actually releasing people in the first place.

I think it’s obvious that the Justice Department, in enforcing fraud cases, would never tolerate that kind of record-keeping and statistical reporting by, for example, American businesses who have to make reports under, for example, the Securities and Exchange Commission’s regulations.

The big breakdown here – I know there’s a proposal on the table for an Article I court. Just to sort of try to compare this to my own experience, in 2004 I began proposing a national security court for terrorism cases. And what I found in making the proposal was that there wasn’t a great appetite on Capitol Hill to do the work – and it really is a lot of work involved in trying to get another court established.

It may be a good thing; it may not be a good thing to do an Article I court. I’d want to hear a lot more about that. But I will say this: Whether you have one or not, the breakdown here is in political accountability at the executive branch level. And that’s mainly because of the failure of oversight at the congressional level.

It’s all well and good to say – and the report certainly makes this point – that the Justice Department component that is reporting to Congress is making oversight very difficult by the way that it supplies records. On the other hand, it’s not like it’s a big mystery to Congress that immigration is a mess in this country.

And while it would be – it would certainly be more effective oversight for the Justice Department to provide better information, the fact is Congress could already do a lot better job than it does in demanding answers to questions and conveying to the American people a better idea of what the state of our immigration enforcement is.

The other thing, I think it’s admirable, because this report is apolitical – which is a good thing – not to try to read into why these numbers are so skewed. I think it’s fair to say that what Judge Metcalf does in the report is simply lay out what is a dramatic problem and leave it to – leave it to others to try to figure out why these numbers are being skewed in the way they’re being skewed.

I would offer, however, a theory, since I’m not bound by your report. And it’s obvious that what the Justice Department is doing is trying to create an illusion of its own effectiveness in terms of how the immigration laws are enforced, and it’s trying to create an illusion of judicial hostility to aliens that I think the report completely undermines.

We have, again and again, had the problem of politicized justice, more from this Justice Department – this current administration’s Justice Department – than past Justice Departments, but no Justice Department, no administration is completely immune from it, particularly with respect to immigration. And these illusions that the Justice Department has tried to create go back several administrations. This is not an Obama administration problem.

We need to have the facts in order to make policy. The most disturbing part, I think, of this report is that it’s very difficult to know what the facts are because the components of government that are repositories of the facts are not giving them to us straight. If the numbers were provided and the statistics were provided in a transparent way, we can then have the kind of robust argument that we ought to have about what our immigration policies ought to be.

But we can’t even begin to have a sensible discussion about that unless we know actually what the facts are. And I salute the work that Judge Metcalf has done here because, unlike the arms of government that are responsible for this, he’s at least putting out what the facts are.

(Audio break.)

MR. MCCARTHY: Thank you.

MR. KRIKORIAN: Thank you. Thank you, Andy. Hans?

HANS VON SPAKOVSKY: Thanks, Mark. Is it just a coincidence you put me at the right side of the table from the audience?

MR. KRIKORIAN: Depends which side you’re looking – (inaudible, cross talk).

MR. KRIKORIAN: (Inaudible) – he’s on this side, so.

MR. VON SPAKOVSKY: Well, I’m going to agree with a lot that Andy McCarthy has said – probably not a coincidence, since we both write a lot for National Review, that we agree on things. But I have to say, I want to compliment Mark Metcalf on all the detailed work and research that went in this paper.

And whoever came up with the title “Built to Fail: Deception, Disorder in America’s Immigration Courts – ” that’s a perfect description of exactly what you found in your information.

Now look, there’s been a lot of discussion and hot debate in this country, and media coverage, over the problems that we face with illegal immigration – from the lack of security along our borders, to the failure of this and prior administrations to fully enforce our immigration laws that we have on the books.

We’ve had huge arguments and fights over the stopping and detention of illegal aliens over the 287(g) program, which encourages state and local governments to assist the federal government in finding and deporting illegal aliens; over the extent of authority that state governments have to concurrently enforce our federal immigration laws; over what should be done with employers who employ individuals who are not here legally and not authorized to work in the United States; and arguments over whether, for example, if federal E-verify programs should stop being a voluntary program and should be made mandatory.

But what’s gotten almost no attention that I could find – and I did a Google search before I – (chuckles) – prepared for this – what’s gotten no attention is our immigration court system in this entire debate. I have talked with people about this, even people who write a lot about immigration, and most of them really have no idea how the immigration court system work.

They are usually surprised to find out that it’s an administrative court system and that the judges are actually simply employees of the Department of Justice who – unlike federal judges who have lifetime tenure once they’re confirmed, immigration judges are actually Department of Justice employees who are subject to the whims and political pressures of the political appointees that an administration puts in in the top-most rungs of the Justice Department.

And that means that they receive the kind of pressure that an administration puts in on whatever its policy preferences are, such as non-enforcement of our immigration laws; or, for example, as was reported by – I think – the Houston Chronicle not too long ago, instructions for wholesale dismissals of pending immigration cases; or lack of enforcement of deportation orders issued by judges, all of which we’ve experienced or already experienced.

I’m not sure that anybody has taken a detailed look at this at all, particularly the reports that Justice has been filing for years. What Mark has found ranges from shocking to scandalous, to something that ought to concern everyone who believes that we are a nation based on the rule of law.

It’s also important because for the ongoing debate that we’re having about illegal immigrant – the immigration population and what to do about it, we can’t have a serious public policy discussion of that unless we have accurate information about not just the number of illegal immigrants coming into the country, but about the immigration court system and how it functions.

Now, Mark’s research, as has been said, reveals deception and disorder to an extent that, quite frankly, I never imagined despite my experience at the Justice Department. And it seems to be caused by a combination of sloppiness, incompetence and what also seems like a deliberate manipulation of data and statistics by the Justice Department, as well as a weak court system that has neither the authority nor the power to effectively enforce our immigration laws and policies.

Just a few of the examples of what really struck me – (chuckles) – when I was reading this – it ought to upset and anger the American taxpayer. I mean, one is that aliens evade immigration courts more often than accused felons evade state courts, and those aliens are rarely caught, which is not the case with felons and state courts.

From ’96 to 2009, the U.S. released almost 2 million aliens after they had been detained, but then let them out pending trial for their immigration violation – 770,000 vanished, had never showed up for their hearings. Nearly a million deportation orders were issued for this group of 2 million individuals, and 78 percent were for court evasion.

The example that Andy came up with about statistics of bail jumpers versus people who don’t get bail and stay at court, that’s the best graphic I can think of, of how what a deception it is to have combined those numbers into one for trying to come up with an overall number that says how many people actually show up for trial.

I mean, no honest researcher would combine two such completely different statistics into one number unless they are – (chuckles) – trying to deceive Congress. And let me tell you, I know because I used to work there – DOJ has some very good statisticians, good statisticians who would immediately look at this and realize, you really – this is not good – these are not good – a way to do this from a professional basis.

Now, the fact that many of these aliens who do immigration appeals – what was it you came up with, 96 percent? Or was –

MR. METCALF: Ninety-eight percent.

MR. VON SPAKOVSKY: Ninety-eight percent – don’t have to do any of the things that any citizen has to do in the civil court system – you know, post bonds, pay for the transcripts. In fact, who is paying for all of that? The American taxpayer. That is completely unfair; and again, it’s something that should anger citizens who believe in fundamental fairness.

The fact that immigration judges cannot enforce their own orders, particularly their deportation order, explains why Mark found that there are 1.1 million – 1.1 million – unenforced deportation orders. And in fact, those orders just sit out there because it’s up to who? Well, the Department of Homeland Security – to decide whether or not they want to enforce them. And guess what? You know, if the policy preferences of a particular administration are that we really don’t want to enforce them, we have 1.1 million unenforced deportation orders.

I mean, that itself, I have to tell you, is just an outrage to me.

So even if the states and even if the federal government were doing everything they could in this area, which I can assure you is not happening, all of those people who are arrested and detained would eventually end up in this immigration court system, which the vast majority of them would get released almost – (chuckles) – immediately right again, where, what’s going to happen? They’re going to disappear into the vast reaches of the United States. And all the time and money spent to find them, detain them was basically a complete waste of taxpayer money.

Now, I have to say, I know a number of immigration judges besides Judge Metcalf. All of them, the ones I met, try to do a good job despite the many problems that they have. Now, regular federal judges in the federal district courts and the circuit courts complain about their workload. Well – (chuckles) – as Mark points out, in 2006, there were 233 federal immigration judges who handled 407,000 cases.

Now, federal, district and circuit court judges, there are a little over 1200 of them. So there are six times as many federal judges as there are immigration judges. Those 1200 federal judges handled 414,000 cases. So these immigration judges with one-sixth the number handled almost the same number cases as federal judges in the federal court system, which tells you how overworked they are in trying to handle the immigration load that we have.

I have to tell you, when this paper goes up to the Hill – and I’m sure Mr. Krikorian is going to make sure that all of the offices up there receive copies of this – what it ought to do is shake the rafters of the Capitol to make them realize that they really don’t understand and have not been informed about the extent of the problem.

And they need to give very serious consideration to many of the recommendations that Mark has made, including at the very beginning a very serious and sustained GAO audit, not just to the Justice Department and the immigration courts, but a GAO audit of the Department of Homeland Security and its lack of enforcement of 1.1 million deportation orders. They need to look at imposition of a cost system that shifts the burden of paying for this from taxpayers to alien litigants, implementation of a bail system that is exactly like the system we have in our civil courts and our criminal courts so that you actually have to prove that you are not a flight risk; and serious consideration has to be given to what can be done to give immigration judges the ability to enforce their orders and penalize DHS for non-enforcement.

Now, one thing I want to disagree with on you – and I should say, I’m a son of immigrants, too. My father fled communism; my mother grew up in Nazi Germany. So you know, I believe in legal immigration. But what people in this country don’t understand is that when the public sees the way illegal immigrants are treated, with the laws not being enforced, with people being treated as if they are legal citizens when they’re not here legally, it gives them, quite frankly, a jaundiced view of legal immigration, too.

And the best way of, frankly, prejudicing the American people against legal immigration is to allow what’s happening with illegal immigrants to go on. I actually believe that we can control this if the political will is there to do it, and if the federal government does what it should be doing instead of what it is doing.

And a quick example of that is the fact that under the federal immigration act, sanctuary – providing sanctuary – a city putting in a sanctuary-city policy – that is illegal under federal law. Providing in-state tuition for illegal aliens is illegal under federal law. Yet there are sanctuary cities all across the United States; there are at least 10 states that provide in-state tuition. Maryland just signed a law. And is the United States Justice Department actually suing to enforce federal law? Why no, they’re not. Instead, they’re suing the state of Arizona for trying to help the federal government enforce federal immigration laws. So the priorities are completely upside down there.

Never – most of the administrations that we’ve had – it doesn’t matter whether Republican or Democrat – have not had the willpower to enforce employer sanctions. People always say, well, you know, if we start detaining and putting people who are here illegally in jail, we just don’t have facilities for it – if employer sanctions were enforced, many people would self-deport because the reason they were here, the livelihood they want to earn, the money they want to send back to their families in other countries, they would not have the ability to do that. And if you have that all around, we can enforce our immigration laws and control our borders.


MR. KRIKORIAN: Thank you, Hans. Let me open it to questions, if there are any. And there’s plenty of talking back and forth we could do among ourselves, but let’s see if anyone in the audience has any questions.

They have to have provoked somebody – if you could identify yourself, too, please.

Q: Sorry. Well, I have some thoughts here –

MR. KRIKORIAN: If you could identify yourself, please.

Q: Oh, sorry. Carolina (sp) – (inaudible) – from Voice of America. According to the homeland security facts, 800,000 people have been deported – meaning people who have been deported since Obama took office. What do you think about those numbers that period? I think even more than 1 million have been deported in the last two years. So –

MR. METCALF: Well, let’s stick with the number of 800,000 first. And you may be right; it may be 1 million men. But I made very clear in the book, as opposed to the report and the summary that you’ve had – you will have the opportunity to read, we’re not talking about people ordered deported from immigration courts. We’re talking about people who have been interjected (ph) at the border, many of which consent to removal, many of which do not claim any business – Ibarra calls it an application for relief; I call it an application for relief and analogize it to a lawsuit.

They never file. We’re not talking about people coming to the United States who are interdicted and are never deported; what we’re talking about is people coming through courts, 40 percent of whom are authorized for deportation and are never removed.

Now, let me point out something else about that: Just because you’re ordered deported doesn’t mean that you can’t seek other forms of relief. We have a very generous system. So let’s say that you are ordered deported because you’re a person who asked for asylum. Let’s say that during your appeal, you met someone, and let’s say that it’s a legitimate engagement, that you really have not gamed the system, that you genuinely fall in love with someone, and you marry them. You can then ask the court to remand your appeal back to the trial court and seek what’s called adjustment of status.

But let’s say that you’re denied that; let’s say that the court finds that, no, this is not a valid marriage – in other words, it was not valid at time of inception. You can appeal on that as well. You may end up staying in the United States for years in litigation. But at the end, a court orders you removed. The chances of you being removed are about zero. I’m talking about the dysfunctionality of a court system; I’m not talking about our unwillingness to remove those who say, basically, remove me; I consent to removal.

The Obama administration is not enforcing anything different than the Clinton administration did, or the Bush administration did. What it’s called is the interior enforcement strategy: It was adopted by the Clinton administration in 1999, 2000, roughly; it’s been in effect since that time. The Bush administration adopted it, and the Obama administration has adopted it.

The first thing you do is, you secure the borders. The second thing you do is you remove criminal aliens. The third thing you do is you interdict alien smuggling rings. But never in that broad strategy, which is – that now embraces pages, there is never any mention of immigration courts or deportation orders in the interior enforcement strategy. In other words, a deportation order goes to DHS, and they determine – a non-judicial official determines when an order will be enforced, not the judge who handed the decision down.

DHS looks at it and says, oh, we got another deportation order in today; put that over there with the other ones that just came in yesterday and the day before, and the day before that. Now, should they be removing illegal aliens? Yes. Should they be removing criminal illegal aliens first? The answer is yes. But if you do not remove those who’ve been ordered deported, then you encourage the very same conduct that has led to a growing illegal population.

We have a robust system of law – whether it is protracted, as Ms. Ibarra says, is necessary for it to be effective, or whether it is not is really not the issue. The issue is, are we providing substantial justice on both sides of the case? And the answer is no, we are not.

I want to give you a piece of – something to take home with that. The Justice Department – the EOIR – or, excuse me – Executive Office for Immigration Review, the agency that manages the courts, it is a statistical agency of the United States not because it reports statistics as a – as its chief function, but because as a function of its work it reports the statistics of what it does – reports it to business.

This is what the National Research Council said: Statistics that are publicly available from government agencies are essential for a nation to advance the economic well-being and quality of life of its people. Its public policy makers are best served by statistics that are accurate, timely, relevant for policy decisions, and credible. The operation of a democratic system of government depends on the unhindered flow of statistical information that citizens, not just Congress, but citizens can use to assess government action.

And I’d respond by saying, in short, EOIR’s reports are a sham. They are a pretense of candid audit. Accuracy, credibility, relevance and timeliness elude this agency, and the flow of believable statistics to the public – a flow EOIR not only controls but authors – is more than hindered. Its reports failed the narrow purpose of describing the courts to lawmakers and the broader one of informing the public.

And what it does, ma’am, it obscures the very compelling story – and I use this word – the very compelling story of national purpose that is buried beneath statistics that tell us nothing about how these courts don’t function correctly. So when you – when you talk about those statistics, look deeper. You’ll see that you’re not deporting those who have been ordered removed by the courts. Very often – well, 98 percent of the time, perhaps, you’re not. You are deporting those who have been interdicted at the borders and some who we’ve picked up in prisons and in jail cells. But these are not the people who have had their day in court, have been ordered removed and filtered out into our nation and remain here because DHS doesn’t do its job, and that’s enforce the order.

And remember, this person can always come back and say, my facts have changed. I’ve married. I’ve even had children. And if you remove me, my children will suffer hardship; that’s called cancellation. And that would be cancellation for someone who entered illegally or remained illegally. So, keep all those things in mind when you look at those statistics. The statistics don’t tell you the whole story because they’re just not telling you the whole story.

MR. KRIKORIAN: Thank you.

MS. IBARRA: (Inaudible.) I disagree with you.

MR. KRIKORIAN: OK, yeah. Go ahead.

MS. IBARRA: I mean, I disagree with you. Someone who’s already been ordered deported cannot come back 10 years later and say the facts have changed and I have children now. Why? Because the law says that once the notice to appear has been issued, everything that you accrue after that is not – is not valid in your defense. So that’s – I mean, I understand your frustration with the system, but that statement is not fully correct. You cannot come back 10 years later and reopen your case.

Now, if you have been grated voluntary departure and you haven’t left, which is another alternative that the – that the courts give you, that voluntary departure order turns into a deportation order when you don’t leave. And if you have been granted voluntary departure, you are barred – I mean, by statute, you are barred for 10 years from being able to reopen your case to get any benefit under the Immigration Act. So it’s – I mean, your question was, a million people have been deported? Yes, the ones that are crossing the borders. They’re not counting the other ones. He’s talking about the ones that we – that didn’t get relief, that got granted either voluntary departure or were ordered deported, appealed their cases and didn’t leave the United States. There’s about, I don’t know, maybe, what, 9 million of those?

MR. METCALF: There’s 12 million.

MS. IBARRA: Twelve million. How are we going to deport them? We don’t have the planes to do it. We don’t have the money to do it.

There’s a proposition that I would – I would put out to you. A legalization program, OK, would cost everyone – everyone would apply. We would get criminals. Everybody would apply. Everybody would be fingerprinted. They would come out in – from the woodwork. They would come out to apply. Grant those that (merit ?) granting and deport the others one. But at least they’ll be coming to you. You’ll be able to find them through a legalization program, because they’ll apply for the benefit; we’ll know who they are. That may be a solution.

MR. KRIKORIAN: I don’t want to get into a debate. I mean, this is – I’m not – that’s – I’m happy to have a debate at another panel on this, but I want to stick specifically to the immigration courts.

And actually, I had a question that sort of – it relates almost to the front end, Mark, of what you’re talking about here. And I’d like your thoughts, Grisel, and everybody else.

A lot of the complaints about the immigration, sort of the earlier complaints about the immigration court system, is, there’s not enough judges. There’s – you know, the workload is very heavy, what have you. But it seems to me that the – that assumes a certain level of workload at the front end. In other words, there’s a (tooled-in ?) statute that the executive branch has called expedited removal which prevents people from being fed into the immigration court system in the first place. Because if everybody gets a bite at the apple, you can never have – we could all be immigration judges and there wouldn’t be enough immigration judges to deal with it.

So my question is – and it’s a little bit outside the scope of the paper, but it is in a sense kind of antecedent to the paper – is part of the solution actually narrowing the doorway for people to challenge their removal in the first place so that you don’t have as large a flow of people? I want Mark’s thoughts first and then anyone else’s.

MR. METCALF: First of all, Mark brings up what’s called expedited removal. Expedited removal or expedited (asylum ?) – it’s called both names – makes up 65 percent of all asylum cases. A person comes into the United States, usually through an airport, sometimes off of a cruise ship, and they claim that they will be persecuted, if returned to their home country. They are immediately placed into what’s called expedited asylum. An asylum official from DHS examines them, determines whether they have a credible claim. And if they do, they have the right then to pursue either processing through the immigration courts through a defensive application – because they know DHS will try to remove them – or through an affirmative application. Because they’re saying, DHS, regardless of what you say, I’m going to apply for asylum.

Now, all that says is, they get in front of an immigration judge. That’s a very swift process, but it’s turned out not to be a swift process. In 1996, Congress found in its House report that aliens were showing up at airports and off ships claiming persecution. They were then given the right to pursue an asylum claim. The fact is that more than half disappeared before court once they were admitted into the United States. Then we adopted expedited asylum, and that was to swiftly adjudicate their applications within 180 days. That’s not happening. Most cases take about five years to adjudicate – not all – but some take as much as five years to adjudicate.

MR. VON SPAKOVSKY: But for the federal government, five years, that’s pretty fast.

MR. METCALF: That’s pretty fast. But the point I want to make here is that since 2005, the last time Congress received any report from EOIR saying how quickly expedited cases are being heard and adjudicated was in 2004. Since 2005, Congress has heard nothing. So the very disorder they were attempting to address has been sunset by EOIR. They just decided on their own. We’re not going to tell Congress how quickly we’re adjudicating these cases. And so the very purpose of the expedited asylum statute has been defeated by the very people that are administering the act. We are not being told, as I said before, the full story. And if we were, we as citizens, regardless of which side of the immigration debate we are on – and there just isn’t one side; there are many sides – but regardless of which side we take, we have to conclude we’re not getting the whole story. And if we were, we’d be better advocates for the positions we take.

But for the – but for EOIR not to report on that critical statistic, expedited asylum is to betray the very thing that Congress authorized them to do in the first place.

MS. IBARRA: Has Congress asked?

MR. METCALF: Has Congress asked? You know, Ms. Ibarra, I don’t know. But they have – they have these hearings. They have the reports. And the reports go 129 pages each year, lickety-split, I promise you; they are no more than 129 pages long. And in 2004, they found room to report that. But since 2005, for some reason they haven’t.

MS. IBARRA: So Congress hasn’t asked.

MR. METCALF: Well, they haven’t reported it, so how can Congress ask?

MS. IBARRA: Well, but if I want to know something, I ask you.

MR. METCALF: Indeed. That’s a good point.

MS. IBARRA: Right? So if I don’t care, then I don’t ask you. So the fact that you don’t report it, it’s not because you’re – it’s because I didn’t ask you.

MR. MCCARTHY: I don’t think there’s any question that Congress can ask. As I said before, I think that better, more transparent statistic making would make it easier for Congress to ask, but that doesn’t mean that they can’t ask in the absence of it. The one – the one thing I disagree with what Judge Metcalf said in the last go round is that I don’t know that robust, transparent, honest statistic reporting would favor both sides or all sides of the immigration debate. If it – it it would, we’d have it. I think it’s pretty obvious that people are playing fast and loose with the numbers for a reason. And if they didn’t think it served their political position, they wouldn’t do it.

Yes, sir.

Q: (Off mic) – Mr. Metcalf.

MR. KRIKORIAN: You’ve got to identify yourself.

Q: I’m sorry. Ben Winograd from the American Immigration Council.

MR. METCALF: Good morning.

Q: How long did you serve as the immigration – (off mic)?

MR. METCALF: I was there two years, three – four months, sir.

Q: OK. And how exactly did you become an immigration – (off mic)?

MR. METCALF: I was appointed by the – by Attorney General Gonzales. I had – and this is a matter of record, by the way, sir – I did not want to become an immigration judge. I had been interviewed for the position of deputy council or deputy director of the Executive Office for U.S. Attorneys. I’m a prosecutor by training. For whatever reason, I didn’t get the job, although I know that the director wanted me. But the apparatus at the – at the Justice Department, informed by the fact that I was a senior attorney who had lots of trial experience and knew how to behave himself, as I was told – because they were having problems with judges who were abusive to aliens – and that is – that is – that is a matter of record. I was asked to be a judge. And as an appointee, I felt a degree of – more than a degree of loyalty, a strong degree of loyalty to do as I was asked to do to help out where I could. I accepted the appointment, and that’s how I became a judge.

MR. KRIKORIAN: Mark, if I could ask a little bit more – because we need to wrap up, because I want to respect people’s time. One thing you didn’t talk enough about, I think, was your recommendations for changing the court, not just the honest statistics – in that sense, that’s sort of good government stuff that ought to happen – but what you also recommended, some basic reforms in the way the immigration court functions. I wonder if you could just kind of briefly outline that, because I think that’s an important part of the report we haven’t talked enough about. In other words, what is an Article I court and how’s that different and why would that be better?

MR. METCALF: Let me – thank you, Mark. An Article I court is a court created by Congress to specific – to fulfill a specific enumerated power. Territorial courts are often Article I courts, in fact, almost always are. And you still have them in existence. By the way, the U.S. Tax Court is a – is an Article I court created under Congress’ power to tax. Congress has what’s called the responsibility to create a uniform rule of naturalization under the Constitution, under Section 8, and it does so with what it considers to be the present system, which has basically been created by the executive, not the Congress.

But to answer the question further, Article I courts always hear public cases. They are courts which hear nothing from the government except its position that the person called into court – the citizen, the private citizen – has a tax debt in dispute, has – in the instance of territorial courts has committed crimes within a territory that is not yet a state. That’s an Article I court, and it fulfills a specific enumerated power of the Constitution.

Since immigration is a specific enumerated power of Congress, I should say – not the Constitution but of Congress – I advocate the creation of a – of an Article I court serving the terms of 15 years, appointed by the president, approved by the Congress or by the Senate, whose reporting, if Article III courts are any indication – Article III court being the federal district courts, circuit courts and Supreme Court and International Court of Trade – those are all Article III courts. Their reporting is transparent to a fault. Their reports are exhaustive, and you can understand what they are doing. And that’s why I believe that that would be a very good way to move at this time.

I want to add something. You all have got in your draft today – I said $71 million could be received from reform of costs and fees – the figure is 13 million (dollars), and that’s usually only the trial courts. So correct that. That will be corrected. There’s a transposition of figures there.

I also want to say this to you, sir, in your response, I – in response, not in defense of myself and not in defense of a process by which I received appointment. But once I got to Miami, with the good tutelage and good advocacy that I received, within seven or eight months of my appointment, the American Bar Association standards were used to evaluate judges. The – when I got my – that’s on a scale of, you know, zero to a hundred. The Miami Bar, the South Board of Immigration Lawyers Association, ranked me 91 points out of a hundred. I worked very, very hard to be a very good judge. And when Ms. Ibarra appeared in front of me, her statement to me was, Judge, you considered all the facts. You were looking for ways to help people if they would adopt certain codes of – or line of conduct. And that’s the way I looked at it. When a person has been here so many years, there’s no reason to throw them out because they have, as she put it, shoplifted. I don’t consider that to be a reason to remove someone unless they don’t reform their conduct, in which case it’s a proper thing to do, is to remove them. We’ve got enough criminals of our own.

Q: So why did you resign from the bench then?

MR. METCALF: I was forced out.

Q: Why?

MR. METCALF: I was forced out because the means by which I had been appointed called into question why I had been involved, as they put it, in recommending to the attorney general’s office people who were interested in being immigration attorneys.

Now, the report found that I had done nothing wrong. In fact, the people whose names were sent up, sir, were people who were recommended to me by immigration attorneys and judges. They were the president of the South Florida Bar or Immigration Lawyers Association who was at that time Lourdes Esquivel Martinez. Some of them I didn’t meet. These were people who were considered excellent attorneys. And I sent their names up to the attorney general’s office at the attorney general office’s request. We also told them – or I told them, rather – you need to apply just as anyone else would. But because the judges and the attorneys who are practicing before me have confidence in you, I’m going to send your name up. That’s how my name came into the investigation.

And as the investigation was concluded, it was found that I had done nothing wrong. But I determined that my better course of action was to leave the court and – without saying anything, which is exactly what I did, and it was not to take pot shots at anybody but was to spend three years writing what is wrong with the courts and how we can improve them and provide justice both to American citizens and to those who wish to be citizens, rather than to allow the present system to continue in its very dysfunctional way.

If you will note – if you will note in my report, you will find that no names are mentioned. None. I’m not here to ruin someone’s career. I’m here to talk about a system that is dysfunctional and needs to be fixed.

MR. VON SPAKOVSKY: And Mark, can I just address this very quick?


MR. VON SPAKOVSKY: Look, this is a distraction, OK? This gentleman is talking about an IG report that was issued. And I can tell you, I looked at this. I used to work at the Justice Department. I talked to people involved. And the problem that Mr. Metcalf had was that he was asked to recommend people for immigration judge slots, and the mistake he made was he actually recommended experienced immigration lawyers to be in those slots, OK? And that’s – that should be the end of that.

MR. METCALF: And by the way, no one was ever asked, are you Republican? Are you Democrat? Did you vote for the president? Nothing like that. The only thing that was ever asked was, are you interested in being a judge, and do you have the talent and skill? These people told me they did. Their names were sent up. That’s all that happened.

MR. KRIKORIAN: The – I want to respect people’s time. I assume people will be around and – to be accosted afterwards. I’m not sure what people’s airline schedules are. But as Mark alluded to, there’s a longer version. This is sort of a boiled-down version of a longer paper with even more footnotes and, you know, in exhaustive detail that’s kind of still in process. So there’s –

MS. IBARRA: (Inaudible.)

MR. KRIKORIAN: Yeah, well, exactly. So there’s a lot more – there’s a lot more behind this. This is sort of the tip of the iceberg. And I really think this would be – this is a good start of a longer discussion about how our immigration appeals system, our immigration court system, needs to be – it needs attention, I mean, at the very least. And this is not – as Hans pointed out, it just doesn’t happen. It’s never part of the debate. And this, I hope, is kind of a start of getting more attention in the policy debate to how our immigration court systems work and how they might or might not be changed. So this report’s online at our site And thanks for coming.

MS. IBARRA: It’s an amazing book.

MR. KRIKORIAN: Thank you. Thank you, folks.

MS. IBARRA: I mean, it’s – the research is just amazing.

MR. : Well done.

MR: Thank you, sir. (Applause.)

MR. : Thank you.