Friday, June 3, 2011

CIS Said What?

The Center for Immigration Studies (CIS), usually a dependable source of indisputable facts and excellent analysis, has had a slip, a major slip.

CIS has, unfortuneately, drunk the Kool-Aide on the issue of so-called "immigration courts." They want to reward the radical left immigration bar that runs the Executive Office for Immigration Review and consquently reward fraud and misconduct by immigrants.

After investigation and arrest, aliens found by the Department of Homeland Security, are generally given two options, they may chose to have a hearing before the EOIR or return to their home country. Most arrested aliens, if you include those arrested by the U.S. Border Patrol (USBP) adjacent to the land border with Mexico, chose to return, mainly to Mexico. Because of their large numbers, they skew the make up of how aliens are removed. However, far from the border, most aliens arrested chose a hearing before a Hearing Officer of the EOIR. While these hearings have an unfortuneate resemblence to a judicial hearing, they are not. The hearings were originally designed to be a check on the legacy INS to ensure that the person in question was an alien and was removeable (in the old days excludeable or deportable).

However, the hearings have changed from a fact checking to a quasi-judicial hearing where Executive branch employees have adopted the position that they are a fourth branch of government, with the authority to impose their own interpretation of law and policy on the Executive branch. This extra-Constitutional attitude, including the egotistical demand that they be treated deferentially by other Executive branch employees as if they were Article III judges, has been a major choke point in the smooth and well-run removal process for aliens.

More unfortuneately, CIS has decided to endorse the failed quasi-judicial review system for aliens and has endorsed creating an Article III immigration court system.

From the summary as a full reproduction of the report takes up too much space:

American immigration courts are the heart of a system that nurtures scandal. Their work touches nearly every aspect of America’s immigration system. These courts are essential to recruit the bright and talented to American shores, to alleviate persecution, and to secure this nation’s borders and neighborhoods. But they cannot perform their critical work. Deception and disorder rule. These courts have become — in the words of frustrated judges — “play courts.” In reality, they are courts that are built to fail.

Weakness is supreme and its impact is pervasive:

Very few aliens who file lawsuits to remain in the United States are deported, even though immigration courts — after years of litigation — order them removed.

Deportation orders are rarely enforced, even against aliens who skip court or ignore orders to leave the United States.

Aliens evade immigration courts more often than accused felons evade state courts. Unlike accused felons, aliens who skip court are rarely caught.

From 1996 through 2009, the United States allowed 1.9 million aliens to remain free before trial and 770,000 of them — 40 percent of the total — vanished. Nearly one million deportation orders were issued to this group — 78 percent of these orders were handed down for court evasion.

From 2002 through 2006 — in the shadow of 9/11 — 50 percent of all aliens free pending trial disappeared. Court numbers show 360,199 aliens out of 713,974 dodged court.

For years, the Department of Justice (DoJ) has grossly understated the number of aliens who evade court. In 2005 and 2006, DoJ said 39 percent of aliens missed court. Actually, 59 percent of aliens — aliens remaining free before trial — never showed.

Since 1996, failures of aliens to appear in court have never dipped below 30 percent.
Immigration judges cannot enforce their own orders. Department of Homeland Security (DHS) officials may order alien offenders arrested and deported. Immigration judges — the system’s sole judicial officers — have no such authority. Judges seldom know if their orders are enforced.

No single federal agency is exclusively tasked with enforcement of removal orders. Immigration and Customs Enforcement (ICE) executes removal orders only when its enforcement strategy says so, not — as it should — in obedience to court orders. ICE’s enforcement strategy does not mention immigration courts or deportation orders.

Enforcement of deportation orders is now nearly non-existent. Removal orders are not enforced unless aliens have committed serious crimes.

Unexecuted removal orders are growing. As of 2002, 602,000 deportation orders had not been enforced. Since then, another 507,551 have been added to the rolls. Today, unexecuted removal orders number approximately 1,109,551 — an 84 percent increase since 2002.

U.S. immigration courts rule in favor of aliens 60 percent of the time. DoJ suggests aliens win 20 percent of the time.

The Department of Justice tells Congress that aliens appeal deportation orders only 8 percent of the time. In fact, over the last 10 years aliens appealed deportation orders 98 percent of the time.

Since 1990, immigration court budgets have increased 823 percent with taxpayers footing the entire bill. Aliens pay no more to file their cases today than they did in 1990.

From 2000 through 2007, tax dollars — slightly more than $30 million — paid aliens’ court costs. Taxpayers underwrote the appeals of aliens ordered removed for criminal convictions and fraudulent marriages.

U.S. immigration judges carry huge caseloads. In 2006 — the courts’ busiest year ever — 233 judges completed 407,487 matters. All work of DoJ’s trial and appellate lawyers combined equaled only 289,316. By comparison, federal district and circuit courts, with 1,271 judges, completed 414,375 matters.

Aliens face the real prospect of not receiving a fair trial.

DoJ’s attorney discipline scheme — a scheme applicable only to the alien’s lawyer — denies aliens the right to effective assistance of counsel and fair trial.

The only possible way the Justice Department’s misrepresentations will be corrected is for the Government Accountability Office (GAO) to audit America’s immigration courts.

An Article I court — a court created through Congress’s constitutional authority over immigration — is the surest solution for those fleeing persecution, while balancing America’s fundamental interest in secure borders and an effective immigration system.

The analysis of the problem is good, but the solutions are worse than useless, they will be counterproductive and result in more illegal aliens remaining in the U.S.

Let us look at the proposal that creating an Article III court for immigration will result in improvements in the arrest of alien absconders. Metcalf assumes that if a judge orders an arrest, then it is done lickity split or that absconders from court orders in Article III courts are immediately tracked down by the U.S. Marshal's Service (USMS). Nothing, however, is farther from the truth. It may appear correct if one is a viewer of the reality TV program, Manhunters, but that is not reality. In the show, Deputy U.S. Marshals (DUSM) from the New York/New Jersey Fugitive Task Force fly all over the country chasing mostly petty and mid-level criminals who have fled local prosecution or State parole or probation. Almost none of the arrestees are Federal fugitives or those with outstanding Federal arrest warrants. First of all, without a reality TV show producer to pay their travel expenses, DUSMs, much less local law enforcement officers detailed to the Task Force, almost never travel. When they have a hot lead on a suspect, then send that lead to the office having jursidiction over where the lead points to.

Next, and closely related, the USMS has a budget, just like U.S. Immigration and Customs Enforcement (ICE). And they have budget restrictions that limit their ability to spend time in the field making arrests. The courts also have limited budgets that restrict their ability to process arrestees.

Just tranfering the search and arrest of alien absconders from ICE to a new court will solve nothing.

The real problem is that the Obama Regime has decided the transfer the ICE budget from arresting and removing illegal aliens in general to a specifically targeted and limited cohort of aliens, those with criminal arrests or criminal convictions. In some ways this is good, as criminal aliens have a worse impact on the community and nation, and they are an easier target, as they are already in custody, and, as criminals, they have fewer options to remain, though they can continue to clog up the current EOIR system. And they could do the same in any Article III court.

The real solution if legislative one is demanded is the expansion of Expedited Removal, the even more administrative and Executive branch process where aliens are removed without any review outside of ICE. Another solution would to be to remove avenues of relief for deportable aliens. Now aliens can claim a variety of reasons to not be deported, from asylum to protection under the Convention Against Torture, to impact on a dependant U.S. citizen or Legal Permanent Resident.

Generally, unless an alien is arriving from a country with a public record of persecution based on democratic political opinion (e.g. a political belief system based on rights reflected in the Bill of Rights as envisioned by the legislation that established asylum and refugee status), there is no need to have any review of immigration law decisions by DHS unless the alien is claiming to be a U.S. citizen. Otherwise immediate removal of the alien is in the best interests of the United States and the rule of law. The EOIR has extended its reach to areas it has no expertise nor lawful authority to review, such as how an alien came to the attention of an immigration officer. An Article III court will have even less reason to limit itself to the law as written and will become inevitably a mini-Warren Court, seeking and creating new rights and privilidges for illegal aliens. The best manner to determine the removeablity of aliens is at the lowest level, at the point of application for admission or at the time of arrest in the U.S. Delaying removal for a review by another Executive branch quasi-judicial officer or for a real court is neither efficient or accurate. It does not give the alien the ability to find true and accurate information that is supportive of their claim, but gives the alien the ability to thwart the review and removal process by political lobbying, appeals to emotion, outright fraud, or fleeing the jurisdiction of the court. A court that is further away from the facts and more restricted than a well organized and led Executive branch agency.

One can really tell the purpose of this study was aiding aliens from one particular sentence:

Aliens face the real prospect of not receiving a fair trial. DoJ’s attorney discipline scheme — a scheme applicable only to the alien’s lawyer — denies aliens the right to effective assistance of counsel and fair trial.

In fact, it is the United States that does not receive a fair trial in current administrative hearing, they are weighted in favor of the alien. Most Hearing Officers at the EOIR are credulous political hacks or former members of the immigration bar and are predisposed against DHS and in favor of the alien. Aliens routinely continue appeals in hoping that the government will tire or suffer from political influence in the alien's favor. Aliens are also able to present fiction and opinion as facts before the EOIR, and no effort is made the the EOIR to prevent fraud in hearings. The fact that aliens make such extensive use of the EOIR is proof enough that they think it is a good shot. And the statistics support that view:

U.S. immigration courts rule in favor of aliens 60 percent of the time. DoJ suggests aliens win 20 percent of the time.

A 60% victory rate for aliens is proof enough. It also shows that immigration law is unnecessarily complicated and subject to varying interpretation.

The only real question is why has CIS supported this crazed inaccurate report?


GWB said...

Federale: What impact is this situation having on illegal farm workers? I hear they are getting arrested at Walmarts in the NE. and SE. Are they then being removed?

Federale said...

Despite near record numbers of illegals being deported, the chances of an illegal being arrested in the U.S. is not likely unless the illegal was arrested for a separate crime. ICE does not do suppression operations such as you are describing, such as raiding day-worker sites like at Walmarts and Home Depots. Even if an illegal is arrested, most are immediately released for a hearing years down the road, and most of those disappear.

Thanks for reading.