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 to 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. There is no better example of this than the bill's neglect of an effective court system.
America's immigration courts are weak and the bill now set for votes this month keeps them that way. Immigration — one of America's most powerful and worthy dynamics — is matched by courts of unequal strength. Put simply, immigration courts cannot impose order.
Under the present system, deportation orders are ignored and few aliens ordered removed from the U.S. after years of litigation are ever deported. Those who deserve relief fare just as poorly. By last count, more than 330,000 cases were backlogged.
This historic dysfunction and offer a glimpse of things to come, if this version of immigration reform passes.
A 1989 GAO report found that immigrants "have nothing to lose by failing to appear for hearings and, in effect, ignoring the deportation process." Disregard for the courts, the study concluded, stemmed from a "lack of repercussions" because few aliens were deported. A 2003 Justice Department report agreed. Only 3 percent of deportation verdicts issued against those free pending trial were enforced. In 2006, Edward Grant, a senior immigration appeals judge, echoed this finding. "Only a small fraction of [deportation orders]... is actually executed."
The cause of this dysfunction is simple. Immigration courts have no authority over enforcement agencies. Unlike federal district courts that have U.S. Marshals to execute their orders, federal immigration courts have no such muscle.
Some 11 million illegal aliens now live in the U.S. Visa over-stayers — those who entered America legally and then refused to leave — comprise 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 U.S. let 2.2 million aliens remain free before trial. Just under 900,000 of these individuals, 39 percent, skipped court and disappeared. Nothing in the measures now under debate reverses this pattern. When more can be gained by dodging court than by attending court — put differently, when consequences are unlikely — dodging court will continue and, as with all systemic defects that corrode valuable initiatives, public support for America's immigration policies will be lost.
Fine improvements dot the present 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 fixes. Emphasis on border security demonstrates a seriousness absent from earlier proposals. Those brought illegally to the U.S. as children — better known as "Dreamers" — receive tracks to citizenship incentivized by 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 is reduced. Deportation orders are further drained of meaning. Aliens deported 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 encouraged. 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 U.S. 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.
Courts without authority cannot provide order. They can assure liberty even less. Only independent and empowered courts are an equal match for the certain risks and superior opportunities that American immigration offers. Effective courts are the priceless check against government agencies that delay relief to the deserving and deny sanction to the offender. Such courts are needed now to complete immigration reform that is inclusive, accountable, and commands consensus.
Mark H. Metcalf is the county attorney for Garrard County, Ky. He served in several posts at the Justice and Defense Departments under President George W. Bush, including as an immigration court judge in Miami. He is the author of Built to Fail: Deception and Disorder in America's Immigration Courts.