DOJ fails America in immigration cases

The fundamental dishonesty of the Justice Department’s annual reports on immigration courts is exposed in a new report from the Center for Immigration Studies.

Immigration cases are handled by an administrative immigration court system, not life-tenured judges in the judicial branch. As Justice Department employees, the administrative judges have very limited authority. For example, they have no power to enforce their own deportation orders.

Enforcement is left to the Department of Homeland Security. And, as documented in the CIS report by former immigration Judge Mark Metcalf, DHS almost always opts not to enforce.

Combing through reams of data, Metcalf found there are over 1.1 million unenforced deportation orders, an 84 percent increase since 2002. Even if an immigration judge rules that an illegal immigrant has no right to be here, the chances that illegal immigrant will actually be deported are almost nil.

Metcalf also discovered that Justice has manipulated its reporting to disguise the failure of the court system. In 2005 and 2006, for example, DOJ reported that 39 percent of illegal immigrants never showed up for their day in court. Instead, they simply disappeared into the heartland.

That statistic is bad enough, but the true numbers are even worse. Justice combines the appearance rate for both released and captive illegal immigrants to produce a deceptively comforting number.

Metcalf found that 59 percent of all illegal immigrants released in 2005 and 2006, prior to their hearing dates never showed up for trial. That’s a startlingly high number. It means people evade our immigration courts more frequently than accused felons evade state courts. And unlike accused felons, illegal immigrants who skip court are rarely pursued, much less caught.

Immigration courts have been demonized as supposedly denying relief to too many illegal immigrants who deserve it. The Justice Department encouraged this, claiming that illegal immigrants receive favorable judgments only around 20 percent of the time. But they produced this number only by including the many cases in which illegal immigrants consent to removal without contest. Illegal immigrants who actually fight deportation receive favorable judgments 60 percent of the time.

Similar sleight of hand allowed DOJ to tell Congress that only 8 percent of illegal immigrants appealed their court decisions in 2009. In fact, 98 percent of all removal orders have been appealed since 2000.

Taxpayers are footing almost the entire bill for these cases. That includes underwriting the appeals of illegal immigrants ordered removed because they are convicted criminals or engaged in marriage fraud to try to stay in the United States. The judges are also severely overloaded. In 2006, 233 immigration judges handled almost the same number of cases as our 1,271 federal district and appeals court judges.

Congress needs to engage in rigorous oversight of the Justice and Homeland Security departments over their handling of immigration cases and their failure to enforce deportation orders. A good first step would be to have the Government Accountability Office conduct a full audit. The American public deserves an accurate account about how its immigration court system is working … or not working.

Hans von Spakovsky is a senior legal fellow at The Heritage Foundation.

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