No fix for our immigration courts

Hans von Spakovsky Hans von Spakovsky is a senior legal fellow at The Heritage Foundation.
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The immigration bill now being considered on the floor of the U.S. Senate does a lot of things — many of them bad. One thing it does not do, however, is fix our broken immigration courts.

When the Department of Homeland Security (DHS) detains illegal immigrants and initiates deportation proceedings against them, those cases go to immigration courts in the Justice Department’s Executive Office for Immigration Review. These are not federal courts established as part of the judicial branch under Article III of the Constitution. They are administrative courts, presided over by administrative judges.

This is a crucial difference because immigration judges, who are Justice Department employees, do not have the power to enforce their own orders. So even if an alien’s case goes through the entire immigration court system (including the appeals process), and ends, finally, with an official deportation order, nothing automatically happens. That final order will simply sit in a file drawer unless and until DHS decides to enforce it.

Immigration judges have no ability to tell federal marshals or any other law enforcement official to enforce their orders. They can’t tell ICE (Immigration and Customs Enforcement) agents to take a deportable alien and put him on a plane headed back to his country of origin.

The immigration court system is broken. Badly. It suffers from a huge backlog of cases: more than 330,000. But even worse is the huge backlog of unenforced deportation orders. According to Mark Metcalf, a former Justice Department immigration judge, the number of unexecuted deportation orders now stands at 1.2 million.

This means that there are 1.2 million aliens who have exhausted their legal rights and have been declared by an immigration judge to have no valid reason to remain in the United States. Many of those aliens are individuals who had been detained by DHS, but were released upon their “promise” to appear in court for a hearing on their immigration claims. According to Metcalf, 900,000 aliens skipped court and disappeared during the last 16 years.

Skipping out is exactly what you would expect from someone who knows he has no legal right to be here to begin with. Why show up in court and risk being deported when you can just disappear and show up somewhere else in the country under a new name?

Section 3501 of the Senate’s proposed immigration bill does provide for the Justice Department to hire an additional 225 immigration judges over a three-year period (2014 to 2016). But it gives them no additional authority to ensure that their orders are actually enforced or that the proceedings over which they would preside do not remain a largely farcical enterprise.

In fact, the immigration bill is chock-full of provisions that weaken the authority of immigration judges even further. For example, it would allow the secretary of homeland security to waive deportation and removal orders under various circumstances. It would also let the secretary “adjust” the status of aliens who were supposed to leave the country.

In other words, aliens who exhausted the court process and were ordered deported — or were actually removed from the U.S. — can still be considered for the same basic amnesty status that the bill would give to millions of other illegal immigrants. And that includes those who displayed their contempt for our system by skipping court and ignoring the rule of law.

The bottom line: The Senate immigration “reform” bill would take a weak immigration court system and damage it even further. This country was founded on the rule of law, a principle that the immigration bill disregards.

Hans von Spakovsky is a senior legal fellow at the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies.

Hans von Spakovsky