- The Washington Times - Thursday, September 2, 2010

One month ago - without notice to Congress, without a word to the American people - the Department of Homeland Security began dismissing from U.S. immigration courts the cases of thousands of illegal aliens. The department says it will focus its efforts on removing criminal aliens. Aliens without serious criminal histories - 250,000 by some estimates - will be left alone. This policy closely follows last August’s announcement by the department that it would not deport fugitive aliens - aliens who skipped court or disobeyed orders to leave the United States. These policies assure that more illegal immigration will follow - with illegals confident that the administration, which refuses to secure this nation’s borders, will not remove those who enter and remain illegally.

This latest move by Homeland Security is unprecedented. What it is doing by wholesale dismissals is done routinely by immigration courts on a perceptive case-by-case basis every day. Aliens in deportation proceedings have for years asked courts to consider “other grounds” that would allow them to remain in the United States. The telltale failure of this policy is that no aliens who received those dismissals were pursuing “other grounds” of relief when the department initiated this scheme. Proof of failure is sure to come when few aliens return to court to seek the relief the department claims is present.

Regardless of what becomes of these people, the rule of law has been ignored by an administration bent on pursuing policies without legal precedent or even - public support. Making matters worse, the historic check and balance of authoritative courts - courts that can refuse the bidding of a reckless executive agency - are absent. Weak immigration courts can only yield to this abuse of power. And here the larger truth emerges.

America’s immigration courts beg for reform. Defined by weakness, they are the heart of a system that nurtures scandal. From 1996 through 2009, the United States allowed almost 1.8 million aliens to remain free prior to their trials before immigration judges. Of those, 770,000 - 44 percent - never showed. Over the past 14 years, nearly 1 million deportation orders were issued to aliens the United States allowed to remain free prior to their trials. Seventy-eight percent of those people never came to court and were ordered removed. Nearly 600,00 remain at large.

From 2002 through 2006, 49 percent of all aliens free pending court appearances disappeared. The Justice Department - the agency that manages the courts and declared the courts a “critical element” in protecting America - never told Congress. The present court system - one without authority - is broken, and its breaking has far-reaching effects. Enfeebled courts breed no-show litigants, unenforced orders, listless caseloads, tardy relief and annual reports to Congress that hide the truth. When confronted by an administration willing to disregard a cornerstone of federal law - the Immigration and Nationality Act - courts can do nothing. Rule of law is the answer to this government-created quagmire. A new court system - a system able to redeem the worthy and promptly remove the suspect - is the solution.

In their wisdom, America’s Founders - some of them native-born, others, like Alexander Hamilton, immigrants - understood that special problems and special opportunities sometimes require special courts. They gave to Congress the authority to create these courts - Article I courts under the Constitution - and Congress has used them to this nation’s great advantage.

Bankruptcy, tax and military courts are such tribunals. Immigration courts should join them and bring to their courtrooms authority to preserve order, protect liberty and resist an overreaching Department of Homeland Security.

Simply stated, America’s immigration courts are upside down. Aliens who enter this nation illegally and then evade court or disobey orders to leave are treated better than the general public in courts across the United States. In any other court, court evasion results in contempt charges, arrest and incarceration. In any other court, judgments are enforced and court business is reported candidly to the public.

Heated debates leave untold stories that affirm America’s singular past - and a vast, optimistic future. Nearly one in 10 of those who have died in Iraq and Afghanistan were immigrants. Indeed, the first serviceman to die in Iraq was not one of America’s native sons, but one she adopted. Marine Lance Cpl. Jose Gutierrez, an orphan raised in Guatemala’s slums, died in freedom’s cause at Umm Qasr on March 21, 2003. His sacrifice echoes history. Nearly one-quarter of the Union Army was foreign-born. So are 20 percent of those holding the Medal of Honor.

American commitment to compassion, pluralism and the rule of law is as large and generous as the continent we occupy. The Immigration and Nationality Actis the most powerful expression of that commitment. It saves the persecuted. It welcomes the skilled. It confirms the exceptionalism of America. To continue this legacy, the INA and the institutions that interpret and enforce it must change. A court of law equal to this legacy is essential for reform. A nation built on the rule-of-law should seek no less.

Mark H. Metcalf served in the Justice and Defense departments under President George W. Bush and most recently was a judge on the immigration court in Miami.