Our immigration court crisis will be Trump's lasting headache
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recent editorial in the Washington Post claims that America’s immigration courts are a “diorama of dysfunction.”

The 300 judges have a backlog that totals more than 500,000 cases. The judges are scheduling hearings two and three years in the future. And the courts are places of “Dickensian impenetrability, operating under comically antiquated conditions.”

For instance, the case files typically are not digitized; docket clerks have to deal with mountains of paper files.

The number of cases in which relief is granted has declined steadily, falling from 31,793 in FY2011 to 17,2013 in FY2016.

The backlog problem cannot be solved by hiring more immigration judges. It would take too many additional judges to bring the backlog under control, and it is doubtful that enough qualified attorneys are available to fill the additional positions. Moreover, the backlog is not the only problem.

According to the Transactional Records Access Clearinghouse (TRAC), the median level of asylum decision disparity has risen to more than 56 percentage points. The grant rate varies from 15 percent to 71 percent, depending on the judge. The six judges in Newark, N.J., for instance, had denial rates that varied between a low of 15.7 percent and a high of 98.6 percent. Their grant rates accordingly varied from only 1.4 to 84 percent.

When TRAC examined this issue ten years ago, the typical denial rate for asylum applications was 65 percent, but eight judges denied nine out of 10 applications and two granted nine out of 10.

The immigration court is run by the Executive Office for Immigration Review (EOIR) in the Justice Department. EOIR also runs an administrative appellate body that reviews the decisions of the immigration judges, the Board of Immigration Appeals (Board). The Board’s decisions are binding on the immigration judges unless modified or overruled by the Attorney General or a federal court.

According to former House Judiciary counsel, Peter Levinson:

“The Attorney General's ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board's stature generally.”

One of the Board’s responsibilities is to promote national uniformity in the decisions of the immigration judges. Apparently, the Board has not been able to do this with decisions on asylum applications.

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President-elect Donald TrumpDonald John TrumpCDC updates website to remove dosage guidance on drug touted by Trump Trump says he'd like economy to reopen 'with a big bang' but acknowledges it may be limited Graham backs Trump, vows no money for WHO in next funding bill MORE will have to deal with this situation before he can begin his promised enforcement program.  

Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.

Instead, it could be based on American employment needs and on preventing the breakup of Lawful Permanent Resident and U.S. citizen families. This could be accomplished with an immigration point system such as the ones used in Canada and Australia.  

Also, the legalization application process could require extreme vetting and meaningful background investigations.

But the Republicans are not likely to accept a legalization program that would repeat what happened with the Immigration Reform and Control Act of 1986 (IRCA).

Approximately 2.7 million undocumented immigrants were legalized in the late 1980s and early 1990s but, by the beginning of 1997, they had been replaced entirely by a new group of undocumented immigrants.

This was supposed to be prevented by a program to fine employers who hire unauthorized foreign workers, but the program was never fully implemented. A better outcome might be possible if focus is on a different magnet, i.e., the fact that it is so easy for American employers to exploit undocumented foreign workers.

The Department of Labor (DOL) can address this problem purely as a labor issue. DOL has authority to enforce federal labor laws that were enacted to curb such abuses. With additional funding, DOL could mount a nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants. This might greatly reduce the availability of jobs for undocumented immigrants.

Nevertheless, although reducing the undocumented population should help, it will not eliminate the immigration court problems. Perhaps immigration adjudications should be moved from the Executive Branch to the Judicial.

In fact, this idea has been around for a long time.

The Select Commission on Immigration and Refugee Policy (Commission) recommended this change in its Final Report in 1981. It recommended the creation of an Article I immigration court. These are courts that are created by Congress pursuant to its power under Article I of the Constitution.

According to the Commission, an Article I court could have a trial division to hear and decide exclusion and deportation cases and an appellate division to correct hearing errors and produce definitive, nationally binding resolutions in exclusion and deportation cases.

The President of the National Association of Immigration Judges, the Hon. Dana Leigh Marks, has made the same recommendation. She acknowledges that the immigration court, which has been called “the most broken part of our immigration system,” is in a state of crisis.

The American Bar Association (ABA) also has supported the creation of an Article 1 immigration court. In a 2010 report, the ABA describes a number of problems, including disparities in the court’s decisions, judicial bias, large caseloads, inadequate resources, and high levels of stress and burnout.

So those with intimate knowledge of our immigration system are well aware of the problem, Trump soon will be as well.

Nolan Rappaport’s immigration experience includes seven years as an immigration counsel on the House Judiciary Committee and twenty years writing decisions for the Board of Immigration Appeals.


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