With the backlog of immigration cases hitting a record high of 585,930 cases in April according to Syracuse University, the initiative announced by Attorney General Jeff Sessions last month in Nogales, Ariz., to hire more immigration judges is a vital step in bringing our immigration courts back to enforcing federal law. This includes the long overdue hiring of an additional 50 immigration judges this year and another 75 next year under a “streamlined” hiring process.
Now that Sessions has “already surged 25 immigration judges to detention centers along the border” and the Trump administration ended the Obama era “catch and release” policy, we may once again see U.S. immigration courts fulfilling their mission: trying the cases of those who have entered or remained here illegally.
Why are these moves important? Because the huge backlog of untried cases and the prior “catch and release” policy allowed many illegal aliens to disappear, never to be seen again. Their numbers are stark evidence of a breakdown in the immigration court system that only accelerated during the Obama years.
Ending the “catch and release” policy—a policy Border Patrol agents rightly refer to as the “catch and run” policy—was a critical first step.
“Catch and release” is the DHS (Department of Homeland Security) policy of arresting illegal aliens, giving them court dates, and then releasing them. Unsurprisingly, many of those released never showed for court.
The numbers tell the story. In 2016, 39 percent of aliens who were free pending trial failed to show up for their hearings. In 2015, 43 percent did the same. Over the past 21 years, 37 percent of all aliens the U.S. permitted to remain free before trial—some 952,000 people—were ordered removed for dodging court.
Courts are three times more likely to issue removal orders for evading court than removal orders from cases that were actually tried. Predictably, American immigration courts have the highest “failure-to-appear” rate of any court system in the country, averaging more than 45,000 per year.
This is why “surging” more judges to immigration detention facilities along our border is critically important.
Deploying judges who can swiftly conduct hearings to grant relief to the deserving and direct removal of offenders not only assures due process to all claimants, but it also serves to warn others away from illegal entry. In short, alert and empowered courts harden our borders.
Restoring the authority of immigration judges is just as important. At the end of 2008—right before Barack Obama became president—federal immigration courts reported a backlog of 186,108 cases.
By the end of 2016, backlogged cases had increased 300 percent to 542,411, and now we have reached almost 586,000 cases. Much of this backlog resulted from procedural changes directed by Justice Department political appointees that radically slowed down court cases. In 2006, 233 immigration judges completed 407,487 cases. Yet in 2016, more than 270 judges completed only 273,390 cases.
At the same time that these Justice Department appointees nearly halted adjudication, DHS political appointees refused to enforce removal orders issued by the immigration courts. Today unexecuted removal orders stand at 953,506—a 58 percent increase since 2002—and the great majority of these orders were issued to those who evaded court.
One final note of concern that few mention: From 2003 through 2015, 62,409 asylum applicants from the 36 “Specially Designated Countries”—countries that DHS designates as aiding and abetting terrorism—entered the U.S.
Forty percent of this group (24,975) received asylum. From the remaining asylum seekers, 3,095 never showed for their court hearings and were ordered removed. Within this group of absconders were 338 people from Iran, Sudan and Syria, countries the U.S. identifies as “State Sponsors of Terrorism.”
Never has there been an accounting to Congress or the public about what became of these people from terrorist safe-havens who claimed asylum before disappearing into the United States.
On top of that, almost no one noticed another alarming fact that came out of former FBI Director James Comey’s testimony before the Senate Judiciary Committee on May 3. Comey said that out of over 2,000 “violent extremist investigations” about “300 of them are people who came to the United States as refugees.”
The bottom line is that America has a well-organized immigration court system that can help secure our borders and remove violators while also redeeming the persecuted. But it works only if it has enough judges to handle its cases and if illegal aliens are detained, so they actually show up for court.
Eight years of intentional neglect can’t be reversed overnight. But Jeff Sessions seems intent on making sure that all of this finally happens by empowering judges, prosecutors, and enforcement officers to do their jobs.
He is restoring common sense and effectiveness to an immigration court system that, until recently, had neither.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and former Justice Department official. He is coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
Mark H. Metcalf is a former Miami immigration judge and the author of "Built to Fail: Deception and Disorder in America’s Immigration Courts". He is a Kentucky prosecutor and a veteran of Iraq.