The most recent push in Congress for immigration reform is compelling. True to our heritage of inclusion, it succeeds. False to our tradition of rule of law, it fails. For any law to forge consensus, it must appeal to both fairness and common sense. The bill now set for debate in June fails this litmus test.
What is sold as a means to simplify and dignify one of our most important national institutions — immigration and naturalization — mandates complexity and much of the same disorder that got us where we are today. No better example of this is the bill’s neglect of an effective court system.
America’s immigration courts are weak, and this latest measure keeps them that way. Put simply, immigration courts cannot impose order. Few aliens ordered removed after years of litigation are ever deported. Edward Grant, a senior immigration appeals judge, noted this impasse in 2006. “All should be troubled,” he remarked, “that only a small fraction of [deportation orders] . . . is actually executed.” Those who deserve relief fare just as poorly. By last count, more than 330,000 cases were backlogged. Facts underscore this historic dysfunction and offer a glimpse of things to come, if this current version of immigration reform passes.
The cause of this dysfunction is simple. Immigration courts have no authority over immigration enforcement agencies. Unlike federal district courts, which have U.S. Marshals, among others, to execute their orders, federal immigration courts have no such muscle.
Numbers tell the story.
Some 11 million illegal aliens now live in the United States. Visa overstayers — those who entered America legally and then refused to leave — make up 40 percent of this total. The rest crossed unguarded borders and entered illegally. Both groups brought children with them. From these two populations, 1.2 million deportation orders remain unexecuted.
Frail immigration courts observed this dysfunction first hand. From 1996 through 2012, the United States permitted about 2.2 million aliens to remain free before trial. Just under 900,000 — 39 percent of the total — skipped court and disappeared. Nothing in the legislation now under debate addresses this systemic defect, and continued neglect will only diminish public support for worthy initiatives that seek to elevate the foreign-born.
Fine improvements dot the present legislation. Enhancements that protect lawful American workers, recruitment of the highly skilled into our tech-driven economy, and real-time tracking of visa holders into and out of ports of entry provide overdue fixes.
Border security improvements demonstrate a seriousness absent from earlier proposals. Those illegally brought to the United States as children — better known as “Dreamers” — receive tracks to citizenship incentivized through higher education and military service. Some reworking is needed, but this value-added approach appeals to our better instincts as a nation. Problems persist, though, in that essential mechanism upon which a rule of law nation depends: effective courts.
While the bill authorizes 225 new judges, judicial authority is reduced. Deportation orders are further drained of meaning. Aliens deported from the United States may apply to come back and the thousands who skipped court can request a waiver — and get in line with the many who played by the rules.
Fraud is encouraged. Courts and immigration agencies alike are required to accept — without independent verification — aliens’ claims to work and residency that make them eligible for the path to citizenship.
Constitutional protections are turned upside down. Aliens in civil deportation proceedings will receive counsel upon demand, while citizens receive counsel only when facing criminal charges and only after proving they are indigent.
Order is subverted. Even felons who are subject to deportation may seek injunctions that allow them to remain in the United States. In the end, courts that spent years ruling on those who should be removed will see their orders overturned by waivers that mock judicial process.
Courts without authority cannot provide order. Even less can they assure liberty. Only independent and empowered courts are an equal match for the certain risks and superior opportunities that American immigration offers.
Effective courts are the priceless check against government agencies that delay relief to the deserving and deny sanction to the offender. Such courts are needed now to complete immigration reform that is inclusive, accountable, and commands consensus.
Mark H. Metcalf formerly served at the Justice and Defense departments, including an appointment to the immigration court in Miami. He is the author of Built to Fail: Deception and Disorder in America’s immigration Courts.