Nolan writes:
. . . .
In the first two quarters of fiscal 2018, the immigration court only completed 92,009 cases. At this rate, the immigration court will have completed only 184,000 cases when fiscal 2018 ends on Sept. 30.
Even if DHS stopped arresting deportable aliens, it would take the immigration court four years to eliminate its backlog.
Attorney General Jeff Sessions is clarifying asylum eligibility requirementsto make it easier to screen out aliens who do not have a legitimate persecution claim, but this will just slow down the rate at which the backlog increases. It won’t reduce it.
To reduce the backlog, Trump will have to pull aliens from the immigration court’s backlog and put them in expedited removal proceedings, and presumably this is why he is planning to expand the use of expedited removal proceedings.
In January, Trump instructed the DHS to apply expedited removal proceedings to the fullest extent of the law. This would extend it to include undocumented aliens who were not admitted or paroled into the United States and cannot prove that they have been here for two years.
It will be extremely difficult to help aliens who are caught up in this expansion. Congress has severely limited federal court jurisdiction over expedited removal proceedings.
The courts cannot consider expedited removal orders on a petition for review.
Review is available in habeas corpus proceedings, but it is limited to determinations of whether the petitioner is an alien; whether his removal has been ordered in expedited removal proceedings; and whether he has been lawfully admitted for permanent residence, or has been granted refugee or asylum status.
Other provisions permit challenges to the constitutionality of the system and its implementing regulations, and claims that the written policies and procedures issued under it are in violation of law. These challenges must be brought in the U.S. District Court for the District of Columbia within 60 days of when the challenged policy or procedure is implemented.
The expansion should greatly reduce the backlog, but it will not eliminate it. Too many of the aliens in removal proceedings have been physically present for two years.
Trump will need a legalization program to finish the job, but he has shown a willingness to work with the Democrats on legalization. But will they work with him?
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Go on over to The Hill at the link to read the rest of Nolan’s article.
- Even assuming that the vastly expanded use of expedited removal were upheld by the Article III Courts (I think it’s unconstitutional), cases couldn’t be “pulled from the backlog.” The Immigration Court backlog is made up almost entirely of cases where the individuals have already been here more than two years. Thus, expedited removal wouldn’t apply.
- Interesting that notwithstanding the attention given to immigration, the DHS hasn’t gotten around to publishing the necessary regulatory change to expand expedited removal. That might suggest that “cooler, smarter heads” within DHS might actually be pointing out why that would be stupid.
- The real “take away” here is that under Sessions’s gross mismanagement of the Immigration Courts more Immigration Judges produce fewer completed cases and more backlog. Basically, what I had predicted. And that’s with all sorts of pressure to churn out orders, cutting Due Process, unnecessary wasteful coercive detention, “aimless docket reshuffling,” some politicized personnel actions, and other “pedal faster gimmicks” by Sessions.
- What that really shows is that Immigration Court cases are difficult cases and that even with Sessions’s shameless gaming of the system against migrants, Due Process has a certain largely irreducible minimum time for hearings.
- Given that, increasing so-called “expedited removal” to reduce the existing backlog clearly would be irrational and present severe Constitutional difficulties under the Due Process clause.
- Like it or not, a substantial legalization program combined with an independent Article I Immigration Court, more rational DHS enforcement priorities, and a healthy dose of prosecutorial discretion is the only way of getting the Immigration Courts back on track.
- And, while I’ve said before that Democrats bear a fair share of the blame for the current Immigration Court dysfunction, Sessions has certainly made it immeasurably worse; the current barrier to reasonable immigration reform is clearly Trump and the GOP restrictionists, not the Democrats.
- Indeed, the Trump-led GOP’s inability to accomplish the “no brainer” of DACA relief shows that it’s going to take “regime change” to solve this problem.
- That means that things are likely to continue to get worse before they improve — that is, unless the Article IIIs step in and take control of the Immigration Courts away from Sessions as an act of Constitutional self-preservation.
- Drastic action? Sure. Likely? Maybe not. But, the Article IIIs might eventually have to do it, since Sessions’s scofflaw actions on immigration are starting to run the entire Article III system into the ground, just like he is destroying the Immigration Courts.
PWS
08-07-18
Paul says, “Even assuming that the vastly expanded use of expedited removal were upheld by the Article III Courts (I think it’s unconstitutional), cases couldn’t be “pulled from the backlog.” The Immigration Court backlog is made up almost entirely of cases where the individuals have already been here more than two years. Thus, expedited removal wouldn’t apply.”
I think Paul’s view of the constitutionality of expedited proceedings is just wishful thinking.
As for having two years, that would save them if they were arrested and put into removal proceedings two years ago. Otherwise, they could have serious trouble establishing that they meet that requirement to the satisfaction of an immigration officer. They won’t get a hearing on that issue.
And it is a Catch 22 situation. If they haven’t applied for asylum, proving that they have been here for two years makes them ineligible because of the one-year application deadline.
They could still apply for withholding of removal or relief under the torture convention, but neither entitles aliens to remain in the US. The US could just offer them a choice of going home or being sent to a refugee center in a county that would not persecute or torture them. And some large donations to UNHCR would make them more than willing to go along. Realistically, few of the aliens would go to a refugee camp if given that choice.
Paul says, “Interesting that notwithstanding the attention given to immigration, the DHS hasn’t gotten around to publishing the necessary regulatory change to expand expedited removal. That might suggest that “cooler, smarter heads” within DHS might actually be pointing out why that would be stupid.”
Have you read the provision that authorizes the two-year period in Trump’s executive order? I doubt that many people know what it means. But Paul is missing the point in my article, which is that Trump has no choice. He can’t secure the border or enforce the immigration laws with such a large immigration court backlog. Read my article for more information on this.
Paul says, “The real “take away” here is that under Sessions’s gross mismanagement of the Immigration Courts more Immigration Judges produce fewer completed cases and more backlog. Basically, what I had predicted. And that’s with all sorts of pressure to churn out orders, cutting Due Process, unnecessary wasteful coercive detention, “aimless docket reshuffling,” some politicized personnel actions, and other “pedal faster gimmicks” by Sessions.”
No, Paul, the backlog has been growing uncontrollably since 2006, long before Sessions became the Attorney General…and you can’t blame Trump for it either.
The elephant in the room that no one seems to want to talk about is the obvious reality that we have to restrict the availability of hearings before immigration judges, particularly asylum hearings.