Responding to an unprecedented backlog of nearly 877,000 cases paralyzing our immigration courts, the Trump administration launched a new policy Tuesday that allows immigration officers to deport illegal immigrants before they appear in court.
The move is a step in the right direction, but more action is needed to deal with the immigration crisis on our southern border. We describe some practical steps below that can make a huge difference.
The “expedited removal” authority under federal immigration law that went into effect Tuesday will allow federal Customs and Border Protection officials to deport illegal immigrants who’ve been in the U.S. for less than two years without giving them access to immigration courts.
This fast-tracking of deportations is unquestionably needed, because the current enormous backlog of immigration cases is delaying court hearings for migrants for months or even years.
Illegal immigrants are released to await their court hearings, but many never show up when the hearings are finally held. Instead, they join millions of others who are in the U.S. illegally, often getting jobs and often having children who automatically are U.S. citizens by virtue of being born in America.
The parents then become objects of public sympathy if the government seeks to lawfully deport them, because this would separate them from their U.S.-citizen children.
The American Civil Liberties Union and American Immigration Council said they will file lawsuits to block the expedited deportation policy that began Tuesday, as they once again seek to stop the government from enforcing our immigration laws.
Unfortunately, the fast-track removal the Trump administration has implemented still won’t apply to migrants who seek asylum in the U.S. and express fear of returning home, as long as they pass an initial screening interview for asylum. This is a gigantic loophole that growing numbers of migrants are using to avoid deportation.
The border crisis requires urgent attention. The Department of Homeland Security has apprehended an unprecedented 800,000 illegal immigrants trying to cross into the U.S. just since last October. And that’s just the number we caught.
The backlog of cases clogging immigration courts was 260,000 in 2011 – a serious problem even then, but far below today’s nearly 877,000 cases today.
Experts estimate that if immigration judges could dismiss cases or render judgments at an early stage this would reduce their caseloads by 40 percent to 70 percent. That would be major progress.
Judges in the immigration courts make final determinations on everything from asylum claims to deportations.
The immigration courts are not regular federal courts under Article 3 of the Constitution. Rather, they are administrative courts inside the U.S. Department of Justice. The judges are hired by the attorney general and do not have to be confirmed by the Senate.
Soon after President Trump assumed office, he instructed then-Attorney General Jeff Sessions to hire more immigration judges. The Justice Department has done that, but the department still doesn’t have enough judges to deal with the rising tide of illegal immigrants sweeping into the country.
Today our federal district courts have 677 judges handling some 460,000 civil and criminal cases across the country. Yet the Justice Department has only 424 immigration judges to deal with nearly twice as many cases.
Put another way, the average immigration judge has about three times as many pending cases as the average Senate-confirmed federal district court judge. And unlike immigration judges, the average federal district court judge has several law clerks and magistrate judges to help him or her with those cases.
It would be nice if the Justice Department could just hire its way out of this mess, but the problem goes beyond a shortage of judges. Our immigration judges lack the standard tools that other judges have. They labor under administrative rules that hobble their efficiency.
For example, unlike other federal and state judges, immigration judges can neither dismiss a case for failure to state a claim, nor render final judgments at the pleading stage.
So even when immigration judges know that a migrant has no legal right to be in the U.S., they still have to manage the claim, hold a hearing, and can only enter a judgment against the migrant after the entire judicial process has been exhausted.
Experts estimate that if immigration judges could dismiss cases or render judgments at an early stage this would reduce their caseloads by 40 percent to 70 percent. That would be major progress. Congress should act immediately to give immigration judges this ability.
What else can be done?
Consider the Justice Department’s Board of Immigration Appeals. Almost all decisions rendered by the immigration judges are appealed to this board – even in cases where the appeals have absolutely no merit.
This happens because, unlike in our regular court system, appeals in the immigration court systems are virtually free. The American taxpayer subsidizes the appeals, and there are no penalties for filing frivolous appeals.
The filing fee, compared to those charged in state and federal courts, is extremely low. And the board waives the fee in almost half of its cases. Furthermore, migrants don’t have to pay all of the other costs associated with an appeal, such as for copies of the record or the transcript from the immigration court hearing.
Such “no-cost” appeals are almost nonexistent for citizens in state and federal courts in civil matters. Illegal immigrants should operate under the same financial constraints as citizens. We should not be funding their litigation.
In addition, immigration judges don’t have contempt authority. That means they can’t hold attorneys accountable for missing filing deadlines, tardiness or worse.
If this was changed, the immigration judges could levy civil penalties on lawyers and others who violate the court’s procedures and orders. Congress actually authorized the attorney general to give this tool to immigration judges more than two decades ago, but so far no attorney general has issued that regulation. Attorney General William Barr should issue it now.
Following up on the fast-tracked deportations begun Tuesday, the crisis in our immigration courts can be remedied by taking the actions noted above, namely: hiring more judges; revising the procedural rules governing these courts; issuing a regulation on contempt authority; and giving judges the ability to dismiss a case for failure to state a claim and the ability to render a final decision at the pleading stage.
There shouldn’t be a partisan divide about giving immigration judges the same authority and power as all other state and federal judges. That is just common sense, no matter what your views are on immigration policy.
Complaining about the immigration crisis isn’t enough. Elected and appointed federal officials have an obligation to quickly act to solve this crisis, and fixing the immigration courts is a good place to start.
Charles “Cully” Stimson is a senior legal fellow at The Heritage Foundation.