The Regime claimed that dismissing cases wholesale would take the overwhelming burden of tens of thousands of aliens with cases off the immigration courts, the Executive Office for Immigration Review (EOIR). However, the policy continues to fail and the backlog in immigration courts is growing. But perhaps that is the plan.
WaPo by Eli Saslow February 2, 2014
His courtroom rarely came to order, and by now the judge had decided it was a waste of time to try. Interpreters explained legalese in three languages. Adults squeezed into crowded seats while children crouched in the center aisle. A court official stood near the doorway and worried about the building’s fire code. “Por favor,” he said in halting Spanish, as another family tried to enter. “No mas.”
Judge Lawrence Burman sat quietly in front of the chaos, adjusting his reading glasses and sifting through a stack of files on his bench. He had 26 cases listed on his morning docket in Arlington Immigration Court — 26 decisions to make before lunchtime about the complicated future of undocumented immigrants in the United States…
In Burman’s courtroom, the urgent number on this January morning was smaller but just as daunting. He had an average of seven minutes per case.
While Congress and the White House make promises about the future of undocumented immigrants, this is the place where decisions must be made — day after day, case after case, in one of the 57 overwhelmed immigration courts across the country. Here, on the second floor of a high rise in Crystal City, tissue boxes are stacked near the courtroom entrance and attorneys push rolling file cabinets, because a briefcase is no longer sufficient to hold caseloads that have tripled in the past decade…
Tough: That was his job. Tough was hearing 1,500 cases per year while federal judges decided 440. It was sharing one law clerk with other immigration judges while each federal judge had four clerks of his own. It was being scheduled to sit on the bench for 36 hours a week…[More]
So, part of the explicit reasoning for wholesale dismissal of immigration cases has completely failed. The real reason there is a backlog though is that the Regime has failed to implement or expand expedited removal, the process by which the Department of Homeland Security removes aliens without referral of aliens to the EOIR, expeditiously removing the alien without hearings or appeals.
And expedited removal would have eliminated the particular case in the WaPo story, the case of Mario Iraheta, a longtime illegal resident of the United States. There was no need for Iraheta to either remain in jail, have a bond hearing, or even had a hearing in the EOIR.
He has no claim to lawful presence, and admits that. There is no immigrant visa available to him nor any available legal authority to adjust status in the United States. His detention and hearing before the EOIR are a waste of time and money.
He should have been removed from the United States, along with his presumably illegal alien wife. However, in the case of Iraheta, his time in jail was his own choice. He could have acceded to removal, but instead he chose to spend the time before he was eventually deported.
In the end, the Regime itself is responsible for the continuing crisis in the EOIR. But that is not to excuse Congress, which also has failed in granting the right to a hearing before the EOIR to illegal aliens with little or no claim to relief from deportation.
The real solution to the crisis in the EOIR is that too many illegal aliens have access to judicial or quasi-judicial review. A solution would be to expand expedited removal to all aliens unlawfully present in the United States.
Only aliens previously admitted for legal permanent residency, e.g. green card holders, and not subsequently already deported, should have access to the EOIR and judicial review.
All aliens in the following groups should be subject to expedited removal:
- Aliens unlawfully present with or without any previous non-immigrant status;
- Aliens present in a non-immigrant status but determined by a DHS component (U.S. Immigration and Customs Enforcement, Customs and Border Protection, and U.S. Citizenship and Immigration Services) with the only review by a third level component manager.
- Aliens claiming U.S. citizenship, asylum, previously admitted but not deported as refugees, and aliens claiming protection under the Convention Against Torture, should have only an administrative review from the component to Board of Immigration Appeals, with no judicial review or limit judicial review to the U.S. Court of Appeals for the Federal Circuit, or a newly created court, the U.S. Court of Appeals For Immigration Review, then to the Supreme Court.
A single court for immigration appeals is necessary to keep the immigration law and policy uniform throughout the country, as the various Circuit Courts of Appeals are notorious for implementing their own immigration policies. The overwhelming numbers of illegal aliens have no cognizable claim on refugee status, asylum or relief under the Convention Against Torture.
Correspondingly, the same illegal aliens are in the United States after overstaying a non-immigrant visa or entered without inspection. There illegal status is crystal clear and can and should be removed without any quasi-judicial hearing as it can easily be determined the essential facts of unlawful presence; alienage and lawful presence.
Alienage is obvious and few aliens make a false claim to U.S. citizenship given that there are serious criminal penalties for such claims and most claims in immigration court are not based on that fact, but a claim to administrative relief.
Furthermore, few aliens in removal proceedings claim they are lawfully present, as most enter without inspection or have already long overstayed admission as a non-immigrant visa holder. There are not facts in dispute in the overwhelming number of claims before the EOIR and those cases should be removed so the judges can concentrate on those issues with a dispute involving either facts or the law, which is what the EOIR was created for, not slow rolling the deportation process for the admitted illegal alien.