There is a border crisis — it's just not quite what the president said it is

There is a border crisis — it's just not quite what the president said it is
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In his address to the nation from the Oval Office, President Donald Trump announced that “there is a growing humanitarian and security crisis at our southern border.” 

He has requested funding for such things as more agents, immigration judges and bed space for detaining undocumented aliens. And he wants $5.7 billion for a physical barrier.

The Democrats are refusing to provide the money he is requesting for the physical barrier.

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John Feehery may have been right when he said that the Democrats oppose funding the physical barrier for the same reason that they insisted that George H.W. Bush sign a tax increase back in 1990: “They want to destroy Trump’s credibility, especially with his base.”

Unfortunately, Trump has made it easier for them by basing his request on claims about who is crossing the border that can be disputed readily, such as that many of them are terrorists or criminals. 

He should base his otherwise correct argument instead on the numbers — on the fact that the sheer number of illegal crossings has overwhelmed our immigration courts, creating a backlog crisis that has made it virtually impossible to enforce our immigration laws, and that the border cannot be secured when illegal crossers are allowed to remain here indefinitely.

Apprehensions

From the 1980s to the mid-2000s, between 1 and 1.6 million illegal crossers were apprehended annually. Apprehensions have been below a million a year since fiscal 2007, and they dropped to 303,916 in fiscal 2017, but they are rising again. 

There were 51,001 apprehensions in October 2018 and 51,856 in November, a little less than half of which consisted of families. If apprehensions continue at this rate, there will be around 612,000 apprehensions in fiscal 2019, which will be more than twice as many as there were in fiscal 2017.

The border patrol never apprehends every person who makes an illegal crossing, so the actual number always is larger — but we can’t determine how much larger. We have no way of knowing how many entered without being detected. 

Border patrol data indicates that 7,216 people died while crossing illegally at remote locations in the 20-year period from fiscal 1998 to fiscal 2017. Most of them perished in the desert from dehydration, hypothermia or heatstroke.

According to CNN, the border patrol just counts bodies they happen upon. In fiscal 2017, they reported 294 deaths, and CNN identified at least 102 more.

The backlog

As of November 30, 2018, the immigration courts had a backlog of 809,041 cases. This did not include an additional 330,211 cases that had not been put on the active docket yet, for a total backlog of 1,139,252 cases. The backlog was only 542,411 cases when Trump took office.

The average wait for a hearing is 1,018 days, and most of the aliens waiting for a hearing do not have a legitimate basis for remaining in the United States.

The percentage of hearings that result in allowing an alien to remain in the United States rose from 19.5 percent in fiscal 2005 to a high of 56.7 percent in fiscal 2016, and then fell to 33.2 percent in fiscal 2018. It was only 25.2 percent as of the end of November.

The Executive Office for Immigration Review (EOIR) is hiring new judges, but it may be doing it too quickly. The immigration court has 395 judges, which is an increase of 30 percent since January 2017.

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I find it unlikely that EOIR was able to fill those positions with experienced immigration lawyers. Many of them do not appear to be applying asylum standards properly, which is not surprising in view of the complexity of asylum law.

The outcome for asylum seekers can vary greatly, according to which judges are assigned to their cases. The likelihood of being granted asylum can be as high as 90 percent or as low as 3 percent in the San Francisco and Newark immigration courts, depending upon which judge is assigned.

Overall, judges denied 54.6 percent of the asylum applications in fiscal 2016, 60.2 percent in fiscal 2017 and 65.0 percent in fiscal 2018.

EOIR is taking steps to expedite adjudications. It has created two Immigration Adjudication Centers with a total of 15 judges who conduct hearings by video-teleconference with the aliens, their lawyers, and prosecutors at different locations.

The judges are now required to complete at least 700 cases each year to get a satisfactory performance rating, which would produce a total of 276,500 cases a year. At that rate, it would take more than four years to clear the backlog — assuming the judges did not receive any new cases, which would be highly unlikely.

If Congress refuses to provide the funding Trump is requesting and ignores the immigration court backlog crisis, Trump will have to resort to drastic measures to secure the border and enforce the immigration laws  —  something that he has repeatedly threatened and that would, almost instantly, change the terms of the entire debate that has led us to today's political standoff and partial government shutdown.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.