Wednesday, June 1, 2011

Report: Built to Fail: Deception and Disorder in America's Immigration Courts

Mark H. Metcalf, a former judge on the immigration court in Miami, Fla. has written a report on the viability of our current immigration court system.  The report is entitled "Built to Fail: Deception and Disorder in America's Immigration Courts."  Needless to say his report paints a very dark picture.

Here is an excerpt:

America’s immigration courts are built to fail. Their authority is weak and their accountability weaker. Their annual reports to Congress — reports offered as a candid summary of court business — are simply dishonest. Bland language and twisted numbers — “government speak” — substitute for unblinking candor and reliable statistics. Court records are reported so badly as to mislead or, worse yet, not reported at all. As a result, America is penalized — and so are the millions of immigrants whose fates have rested with government officials who refuse to tell America the straight story about these very American courts and their very American business. America is shortchanged by the one institution of the federal government charged with telling the truth about these courts — the U.S. Department of Justice. America is more than shortchanged. It is, in fact, cheated.

Here are his recommendations:

  1. Congress should replace the present immigration court system with an Article I court with presidentially appointed, Senate-approved, judges, similar to the U.S. Tax Court or the U.S. Court of Federal Claims. Trial and appellate judges would have continuing jurisdiction over the alien litigants and government agencies appearing before them. They would have authority to enforce their orders, using both legal and equitable remedies.

  2. Article I immigration courts should have both civil and criminal jurisdiction. Courts would continue to rule on asylum, adjustment, and cancellation cases — the bulk of their present caseloads. Their criminal caseload would involve violations of Titles 8 and 18 of the U.S. Code — alien smuggling, marriage fraud, document fraud, and false claims of citizenship. Concurrent jurisdiction with Article III courts would assure access to constitutional protections — grand jury and jury trial — for defendants who request them. These new, more expert immigration courts would swiftly rule on high volume matters that previously have choked their Article III counterparts.

  3. The courts’ annual reports to Congress — the “Statistical Year Books” — need reform. EOIR’s reporting methods misrepresent critical dynamics of court business. Failure-to-appear rates are significantly understated. Incomplete disclosure of trial caseloads is routine. Appellate caseloads are entirely unknown. Expedited asylum matters are not reported with fidelity to congressional intent. A frank audit by the GAO is needed. The Bureau of Justice Statistics and the National Research Council — both of them available to EOIR — should redesign its reporting methods. Transparency is itself a remedy for these ills.

  4. Filing fees and court costs merit significant revision. Fees have not increased since 1990, while taxpayer commitment to the courts has increased 823 percent. Court costs are non-existent. From 2000 through 2007, taxpayers provided just over $30 million to transcribe trial records for litigants, some of whom were convicted of crimes in the United States or had committed marriage fraud. Revising costs and fees in non-asylum cases only — and allowing the fees to remain with the courts — could produce as much as 24 percent of the courts’ 2010 budget, a savings of $71 million.

  5. Intermediate remedies are needed. Immigration courts currently have available only two judgments to address any case they hear: relief or removal. Equitable remedies that give courts jurisdiction over aliens throughout the trial and appellate processes and offer redemptive solutions for those who merit second chances, with certain removal for those who do not, provide fuller justice the present courts cannot deliver.

  6. Constitutional defects impair alien litigants’ rights to effective assistance of counsel. This vital guarantee is denied by court regulations that create a dual disciplinary system that investigates, prosecutes, and sanctions only private counsel. DHS prosecutors cannot be held to account by either judges or EOIR for any alleged misconduct. This process is a product of weak courts — courts that cannot discipline either attorneys or litigants. An Article I court is the solution for this defect.