It’s the President’s duty to fix a broken system through executive action.

Sunday, September 7th, 2014
By: Jonathan MontagJ.D.

There was immigration-practice-related developments in the main stream news this week. First, the President announced that any executive orders he will make about immigration law will be after the November (2014) elections.  Also, it was reported that the immigration court backlog has reached 400,000.

The popular wisdom is that the President needs to issue executive orders to placate the pro-immigration forces that are part of his base. As the President cannot run for president again, why he has to keep his base happy is a little elusive to me, there may be some truth to this. Why he decided to wait till after the elections is obviously more of a political decision, which does not mean it is a bad reason, as running an administration, a country and a world is politics. That is why we call the study of running administrations, governments, countries and managing the global order is called political science. Just ask Frank Underwood.

I believe there is more than a political motive to take executive actions. Across the political spectrum  it is acknowledged that the immigration system is broken. When something is broken, if it matters, it needs to be fixed. If Congress cannot fix it, the chief executive has a duty to.

This is where the news of a 400,00 backlog in immigration cases comes from. Think about that number for a while. The government placed 400,000 in proceedings to remove them from the country, obviously because of their undesirability to live amongst us (or else, why deport them?). At least 370,000 are freely roaming the country, i.e., living their lives. Yet, their cases are hung up is a 400,000 long queue that gets longer and longer each year.

When I first began practicing immigration law in San Diego in 1994, there were three immigration judges. Within a few years the number expanded to eight judges. It has remained eight judges ever since. In 1994, there were about five deportation officers and some supervisors. They shared floor space with other government functions on two floor of the federal building – including a huge file room and three immigration courtrooms with room for staff, offices, and chambers(es?). They have since taken over both of the floors as well as space at a giant detention center. There are now more officers than any one practitioner could ever know and people behind the scenes practitioners never see. In other words, the business of arresting and detaining aliens became big business and the business of adjudicating their deportations stayed at the same Mom and Pop level for nearly two decades.
There were some modest stabs at reducing the backlog. The Department of Justice implemented “completion goals” in the mid-2000’s that hung over immigration judges heads, and like anyone who knows anything about litigation knows, actually hung over the litigants’ heads, and anyone who ever defended rather than prosecuted knows, hung over the defendants’ heads. The Board of Immigration Appeals began issuing one judge decisions, but at the same time it cut its size in half – perhaps some EOIR bravado: “Appeals, we don’t need no stinkin’ appeals.” The backlogs persisted.  Draconian detention laws came into force to coerce aliens not to fight their deportations, yet still the backlogs grew.

The 400,000 backlog number probably is not the true picture of the backlogs. I assume the 400,000 reflects active cases pending. There are thousands upon thousands of inactive cases – administratively closed cases – where immigration judges decided that they wanted to allow cases to sit dormant rather than deciding them one way or the other. These days this is happening in cases of undocumented aliens eligible for the form of relief most can pursue – Cancellation of Removal for Certain Nonpermanent Residents.  Because only 4,000 of these can be granted in a year and the number granted far exceeds that number, immigration judges are administratively closing these cases rather than deciding on relief that cannot be granted. Other cases are being closed because the government is exercising its “prosecutorial discretion” not to pursue them or because the aliens are protected from removal by Temporary Protected Status, Deferred Action, because legal issues remain unclarified, or because other relief, such as adjustment of status, will ripen in the near future, to list some reasons.
With hundreds upon hundreds of thousands of cases pending, Congress could allocate money for more immigration judges and BIA members. But Congress won’t. If you consider the fact that aliens subject to deportation run the gamut from serious criminals to long-term undocumented who have families and homes and jobs, from people who have been here for 30 years to people who have been here for 3 months, if the immigration courts can only deal with a fraction of cases pending, triage is appropriate. Some sort of system to allow those less undesirable and, in fact, desirable, to stay so resources can be devoted to getting rid of people who “should be” gotten rid of should be implemented. “Should be” is the touchiest and hardest political issue of all, of course.

If you feel that the rising backlogs are not of any consequence – it does not matter – than executive action seems like an unnecessary, political move. However, if you believe that the laws designed to get rid of the undeserving and undesirable should be properly administered, but cannot be because of irrational resource allocation, then you should agree that some kind of prioritization should be enacted to try to give some semblance of rationality to who shall leave and who shall stay. Executive action is not the act of an over-reaching executive. It is the act of a man doing his job. Posted September 7, 2014.


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