Op-Ed

Immigration courts as porous as borders

At issue | Various columns, articles on the immigration debate

Humorist Mark Twain had it right when he observed "there are three kinds of lies: lies, damned lies and statistics."

Twain never read the Justice Department's yearly immigration court reports — but they are a perfect example of how poorly the federal government treats immigration and how little it trusts its own citizens with the powerful information buried in technical jargon and skewed statistics.

Simply put, Justice Department executives game these numbers. The department sends annual reports to Congress suggesting that immigrants win no more than 13 percent of their cases and infrequently appeal deportation verdicts. Nothing could be further from the truth. U.S. immigration courts are, in fact, generous with relief.

Over the last 14 years, immigration courts ruled in favor of the foreign-born 42 percent of the time — a number more than three times greater than what Justice told Congress.

Appeals are, in fact, robust.

By history, aliens appeal trial decisions 81 percent of the time. The highest appellate rate Justice ever admitted to Congress was 17 percent.

The generosity of these courts and the laws they administer is underscored by how often asylum-seekers are permitted to withdraw their cases in order to seek favorable judgments that are easier to obtain.

Since 1996, more than half of all asylum cases — some 461,000 — were dismissed or transferred prior to trial. American generosity goes even further.

In 1996, Congress found that many aliens with fraudulent documents or none at all were deboarding aircraft at American airports begging to be let in, only to disappear in large numbers when the opportunity was right. Rather than turn these people away, Congress created a form of relief just for them. This relief is called expedited asylum.

Expedited asylum requires that aliens without authentic travel papers initially be detained and have their cases tried within 180 days. Expedited asylum now makes up 64 percent of all asylum cases.

Despite this, 44 percent of all aliens filing lawsuits before U.S. immigration courts — nearly 800,000 altogether — disappeared before trial since passage of the expedited asylum statute.

Making matters worse, Justice stopped reporting in 2005 on how many expedited asylum cases are actually completed within the 180-day deadline — and it has never reported how many of those claiming expedited asylum have evaded court.

Meanwhile, weak immigration courts can only stand by as many of those who claim asylum still walk from courtrooms never to be seen again. Nearly a third of all aliens — aliens free during court proceedings — disappeared before trial in 2009.

Public outrage is justified. What is true about America's borders is just as true about its immigration courts. They are frail and porous. They can neither impose order nor protect liberty. One of America's most powerful dynamics — immigration — is unmatched by courts of equal strength. Comparison reveals their frailty.

Aliens evade immigration courts more often than accused felons evade America's state courts. A Justice study completed in 2007 showed that accused felons in state courts became fugitives — in other words failed to appear in court — 24 percent of the time. Twenty-one percent were later caught.

Between 2002 and 2006, 49 percent of all aliens free pending court became fugitives. In 2008, a record number of these fugitives were arrested — 6 percent from a population of almost 600,000.

The late congresswoman, Barbara Jordan, a Texas Democrat, and herself a great story, summed up how our policies can best serve immigration. "Credibility in immigration policy," she said, "can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here [are] required to leave ... For the system to be credible, people actually have to be deported at the end of the process."

She could have added that those who remain fulfill the great promises that only immigration done the right way accomplishes.

Good immigration policy begins with honest numbers. It ends with borders that are secure and authoritative courts seamlessly linked to enforcement agencies that execute their orders. In the middle are laws that dignify the law-abiding, sanction the offender and give opportunity to the striving. Under the present system — a system turned on its head — those who break our laws are rewarded, while those who obey them are often penalized.

As the immigration debate continues, a lot of Barbara Jordan's common sense and a generous helping of Mark Twain's wry humor are needed — and will sustain us and a vast future, too.

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