The Achilles Heel of Immigration Enforcement
Tight borders will only work if broken system to swiftly deport criminal aliens is fixed
There is little doubt that President Trump’s administration is the first in ages to take immigration enforcement seriously. He has announced plans to hire 10,000 new Immigration and Customs Enforcement (ICE) agents and 5,000 Border Patrol Agents, and to build a wall along the southern border. He’s ended controversial “catch-and-release” policies, allowing immigration officers to do their jobs again. And he has shown a clear willingness to enforce America’s immigration laws as written.
Nevertheless, there remains a significant weak point in President Trump’s efforts to put immigration enforcement back on track: the Immigration Court. Due process requires that most immigration violators receive a hearing before facing deportation. But the Immigration Court, which already has a reputation for sluggishness and bias toward aliens, is collapsing under a crippling backlog of cases.
Most of this logjam accumulated under the Obama administration, which clogged the court with dubious unaccompanied-minor cases and other questionable claims. Without rapid reform, the court may be the downfall of the Trump administration’s plans to put immigration enforcement back on track.
The tightest borders in the world won’t matter if we can’t deport criminals, terrorists, and other immigration violators apprehended … in a timely fashion.
According to Syracuse University’s Transactional Records Clearinghouse, there are 572,608 pending cases before the Immigration Court. Meanwhile, Department of Justice (DOJ) statistics indicate that the Immigration Court completes approximately 290,000 cases per year. That means it would take approximately two years just to clear the current backlog.
Improved enforcement will only increase that backlog and further extend the waiting time for a removal hearing. Protracted delays between an alien’s arrest on immigration charges and appearance in court inevitably raise legal questions. Resolving those issues draws out the removal process, creating a vicious cycle that benefits only the alien, who — by definition — doesn’t want to be removed from the U.S.
As part of its efforts to restore the rule of law as the basis for immigration decisions, the Trump administration should prioritize Immigration Court reform. As an administrative tribunal housed within the DOJ, the Immigration Court is an executive agency, not a part of the judiciary branch. Thus, it falls well within the president’s area of responsibility. While legislation may be necessary to carry out some reforms, others can be accomplished through executive action and changes to the Code of Federal Regulations.
One of the major flaws currently affecting the court is that it has not grown sufficiently, even as the U.S. has admitted increasingly larger numbers of immigrants, and attracted even more illegal aliens. Beset with near continuous backlogs for the past two decades, it should be obvious to everyone that the Immigration Court needs to be bigger. It currently has neither an adequate number of facilities nor appropriate staffing levels.
At present, there are Immigration Courts in 28 states and Puerto Rico. New York, California, and several other states have multiple court facilities. Other large regions, such as New England, are serviced by a single site. But nearly 12 million immigration violators can be found throughout the U.S., and there should be an Immigration Court in every major and mid-sized American city.
Congress has authorized the court to operate with 374 immigration judges. Approximately 300 of those slots are currently filled, with the rest remaining vacant. But Attorney General Sessions has only announced plans to hire 50 new immigration judges this year and 75 next year. That is barely enough to keep up with normal attrition, as Immigration Judges retire or choose to make a career change.
At a bare minimum, President Trump must ensure that all 374 immigration judge positions are, and remain, filled. Looking to the future, however, he should ask Congress to authorize at least 1,500 total immigration judges — a number that would allow for both backlog reduction and timely handling of incoming cases.
To those who value the rule of law and acknowledge the serious public safety and national security concerns associated with uncontrolled mass migration, the Trump administration's approach to immigration enforcement has been refreshing. But managing our borders and immigration system requires a holistic approach. The Immigration Court remains the Achilles heel in the Trump immigration enforcement plan. The tightest borders in the world won't matter if we can't deport criminals, terrorists, and other immigration violators apprehended within the U.S. in a timely fashion.
Matt O'Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as assistant chief counsel in U.S. Immigration and Customs Enforcement's New York district. He is currently the director of research at the Federation for American Immigration Reform (FAIR).