A case now working its way to the U.S. Supreme Court, Lopez-Valenzuela vs. Maricopa County, pits the American Civil Liberties Union (ACLU) against Arizona and its mandatory detention of accused felons who are also illegally present in the United States. This practice, claims the ACLU, is unconstitutional.
Intended to prevent flight from prosecution, the requirement makes it more likely offenders will stand trial and, if convicted, will eventually be deported. Approved by Arizona voters in 2006, the law reflects a standard frustration with broken federal promises to secure borders and enforce removal orders. This same frustration mirrors both the aspiration and the gridlock in Congress over immigration reform.
Urging the 9th U.S. Circuit Court of Appeals to overturn the measure, the ACLU asserted that no empirical data show those illegally present are a greater flight risk than any other group. “It’s unfair,” it argued, “to subject [illegal immigrants] to rules that don’t apply to everyone else.” Some fact-checking is appropriate.
Indeed, immigrant offenders often fail to follow the rules — that is, attend court like everyone else. Immigration court records from 1996 through 2012 show 76 percent of the 1.1 million persons free pending trial were ordered removed for evading court.
These evasions compose the greatest source of unexecuted deportation orders in the immigration court system. Not even a quarter of those free pending trial — some 268,000 — actually came to court and finished their cases. By contrast, accused felons in America’s state courts — those also free pending trial — seldom missed, only 24 percent according to a 2007 Justice Department study.
Notably, those persons detained pending trial produced wholly different results. Over the same 17-year period, immigration courts handed down 2.7 million removal orders — 60 percent of them, or 1.6 million — in detention facilities. Up to 96 percent of these removal orders, records say, were actually executed. With flight not an option, detainees were removed at their cases’ completion. When not detained, results were predictable.
Not only did many flee court, but seldom were they rearrested. U.S. Immigration and Customs Enforcement (ICE) reported its highest fugitive rearrest numbers in 2008, when agents apprehended a total of 34,000 people, or 6 percent, from a fugitive population of 592,000. Since then, ICE has abandoned its immigration-fugitive program, and fugitives have increased 52 percent to almost 850,000. History provides context.
A 1989 General Accounting Office (since renamed the Government Accountability Office) report found “[a]liens have nothing to lose by failing to appear for hearings and, in effect, ignoring the deportation process.” This disregard, the study concluded, stemmed from a “general lack of repercussions” because few ordered removed are ever deported. Numbers and narrative tell the story.
A 2005 Justice Department investigation confirmed only 3 percent of the non-detained were actually removed after unfavorable court rulings. Laments Judge Edward Grant of the Board of Immigration Appeals: “All should be troubled by the fact that only a small fraction of final orders of deportation and removal are actually executed.”
Department of Homeland Security Secretary Jeh Johnson concedes the point, recently telling Congress most deportations come from border arrests. The balance, records reflect, come from jails and prisons. Despite the U.S. Code requiring deportation within 90 days of a final court order, such rulings are rarely enforced — and none of this dithering comes without cost.
The government’s failure to enforce the most elevating and redemptive cornerstone of federal law — the Immigration and Nationality Act — leaves a vacuum that invites more than porous borders, feeble courts and frail enforcement. Relief for the deserving is inexcusably delayed — some litigants wait more than two years for hearings — and law-abiding neighborhoods are carelessly jeopardized.
Last year, some 68,000 criminal aliens — instead of being removed — were released back onto the streets. Most importantly, public confidence wanes in the wake of federal retreat. Meanwhile, national and domestic security challenges persist and the price of nonenforcement goes up.
A 2006 Department of Homeland Security report found that 85 percent of aliens from nations that aid and sponsor terrorism disappeared upon release from detention. Others, like Algerian-born Ahmed Ferhani, pose threats well after entry.
Detained by New York City police on robbery and narcotics charges in 2010, he was placed into deportation in early 2011 and remained free pending trial. He failed to appear in immigration court and was later arrested — but only after discovery of his plan to attack Manhattan synagogues and the Empire State Building.
Common criminals do more than disturb the peace. Jose Alfaro, a Salvadoran national, was ordered removed in 2002. Never detained — despite two later arrests — he remained at-large for nine years before murdering three people in Manassas, Va., on Feb. 10, 2011. Kesler Dufrene, a Haitian national and twice-convicted burglar, completed his Florida prison sentence in 2010 with a deportation order pending. Still, ICE released him, and on Jan. 2, 2011, he gunned down two adults and a 15-year-old in North Miami.
The ACLU is entitled to its own opinions, but not its own facts. Those illegally present routinely evade court and are rarely seen again — and when they are, it is often too late. Those are facts.
The American public — citizen and immigrant alike — expects the laws to be fairly and effectively enforced. Those are facts, too, and ones that Washington isn’t getting.
Mark H. Metcalf is a former judge on the immigration court in Miami, and served under President George W. Bush in several posts at the departments of Justice and Defense.