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METCALF: A system rebuilt to fail once more

Immigration reform neglects the broken courts

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The most recent push for immigration reform is compelling. True to our heritage of inclusion, it succeeds. False to our tradition of rule of law, it fails. For any law to forge consensus, it must appeal to both fairness and common sense. The measure now headed for the Senate floor fails this litmus test.

What is sold as a means to simplify and dignify one of our most important national institutions — immigration and naturalization — mandates complexity and much of the same disorder that got us where we are today. No better example of this is the bill's neglect of an effective court system.

America's immigration courts are weak, and this latest measure keeps them that way. Put simply, immigration courts cannot impose order. Few illegal immigrants ordered removed after years of litigation are ever deported. Edward Grant, a senior immigration appeals judge, noted this impasse in 2006. "All should be troubled," he remarked, "that only a small fraction of [deportation orders] is actually executed." In fact, a 2003 Justice Department report found that not more than 3 percent of aliens free pending trial were actually removed after verdicts went against them. Those who deserve relief fare just as poorly. By last count, more than 330,000 cases were backlogged at the trial level alone. Facts underscore this historic dysfunction and offer a glimpse of things to come if this current version of immigration reform passes.

The cause of this dysfunction is simple. Immigration courts have no authority over immigration enforcement agencies. Unlike federal district courts that have U.S. marshals, among others, to execute their orders, federal immigration courts have no such muscle. Numbers tell the story.

An estimated 11 million illegal immigrants now live in the United States. Visa overstayers — those who entered America legally and then refused to leave — make up 40 percent of this total. The rest crossed unguarded borders and entered illegally. Both groups often brought children with them. From these two populations, 1.2 million deportation orders remain unexecuted.

Frail immigration courts observed this dysfunction firsthand. From 1996 through 2012, the United States permitted some 2.2 million aliens to remain free before trial. Nearly 900,000 of these individuals — 39 percent of the total — skipped court and disappeared. Nothing in the measures now being debated addresses this systemic defect, and continued neglect will only diminish public support for worthy initiatives intended to elevate the foreign-born.

Fine improvements dot the current legislation. Enhancements that protect lawful American workers, recruitment of the highly skilled into our tech-driven economy, and real-time tracking of visa holders into and out of ports of entry provide needed 21st century fixes for a system mired in the pre-digital 20th century. Emphasis on border security demonstrates a seriousness absent from earlier proposals. Those illegally brought to the United States as children — better known as "Dreamers" — earn tracks to citizenship incentivized through higher education and military service. Some reworking is needed, but this value-added approach appeals to our better instincts as a nation. Problems persist, though, in that essential mechanism upon which a rule-of-law nation depends: effective courts.

While the bill authorizes 225 new judges, judicial authority declines. Deportation orders are further drained of meaning. Aliens deported from the country may apply to come back, and the thousands who skipped court can request a waiver — and get in line with the many who played by the rules.

Fraud is enabled. Courts and immigration agencies alike will be required to accept — without independent verification — aliens' claims to work and residency that make them eligible for the path to citizenship.

Constitutional protections are turned upside down. Aliens in civil deportation proceedings will receive counsel on demand, while citizens receive counsel only when facing criminal charges and only after proving they are indigent.

Order is subverted. Even felons who are subject to deportation may seek injunctions that allow them to remain in the United States. In the end, courts that spent years deciding the cases of those who should be removed will see their orders overturned by waivers that mock judicial process.

America's immigration courts express fundamental confidence in those who embrace our shores and the redemptive power of our democracy. For the immigrant in particular, they reveal the beginnings of accountability that are a surety of our exceptionalism. But ignored by both Republican and Democratic administrations, these courts have ceased to do the critical work for which they were created — to definitively decide the claims of those who ask to join our nation and see those decisions impartially enforced. Now, instead of debating how we extend the great prize of American citizenship to more of the world's bright and talented, Congress argues whether felons should be deported. This is the small-ball politics that has sabotaged public confidence in immigration. It shows how far we have fallen both in the mission of these special courts and with immigration in general.

Courts without authority cannot provide order. Even less can they assure liberty. Only independent and empowered courts are an equal match for the certain risks and superior opportunities that American immigration offers. History proves them not just a priceless check against tyranny, but also an effective antidote for drifting government agencies that delay relief to the deserving and deny sanction to the offender. Such courts are the necessary complement to immigration reform that is inclusive, accountable and commands consensus.

Mark H. Metcalf served in several posts at the Justice and Defense departments under President George W. Bush, including judge on the immigration court in Miami. He is the author of "Built to Fail: Deception and Disorder in America's Immigration Courts" (Center for Immigration Studies, 2011).

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