May 26, 2011 | Commentary on Department of Justice, Rule of Law

DOJ's Lies About Immigration Cases

The Justice Department has been deceiving us for years. A new report from the Center for Immigration Studies details the fundamental dishonesty of DOJ's annual reports on immigration courts.

Immigration cases are handled by an administrative immigration court system, not life-tenured judges in the judicial branch. As Justice Department employees, the administrative judges have very limited authority. For example, they have no power to enforce their own deportation orders.

Enforcement is left to the Department of Homeland Security. And, as documented in the CIS report by former immigration Judge Mark Metcalf, DHS almost always opts not to enforce.

Combing through reams of data, Metcalf found there are more than 1.1 million unenforced deportation orders, an 84 percent increase since 2002. Even if an immigration judge rules that an alien has no right to be here, the chances that alien will actually be deported are almost nil.

Metcalf also discovered that Justice has manipulated its reporting to disguise the failure of the court system. In 2005 and 2006, for example, DOJ reported that 39 percent of aliens never showed up for their day in court. Instead, they simply disappeared into the heartland. That statistic is bad enough, but the true numbers are even worse.

Most people arrested as illegal aliens are released after a hearing date has been set. But some are held in jail until their trial. Obviously, those kept behind bars are not going to miss their hearing. Yet Justice combines the appearance rate for both released and captive aliens to produce a deceptively comforting number. In 2005 and 2006, Metcalf found, 59 percent of all illegal aliens released before their hearing dates never showed up for trial.

That's a startlingly high number. It means aliens evade our immigration courts more frequently than accused felons evade state courts. And, unlike accused felons, aliens who skip court are rarely pursued, much less caught.

Immigration courts have been demonized as stingy, supposedly denying relief to too many aliens who deserve it. The Justice Department has encouraged this deceptive perception, claiming that aliens receive favorable judgments only around 20 percent of the time. But Metcalf found that they produced this number only by including the many cases in which aliens consent to removal without contest. Aliens who actually fight deportation receive favorable judgments 60 percent of the time.

Similar sleight of hand allowed DOJ to tell Congress that only 8 percent of aliens appealed their court decisions in 2009. In fact, 98 percent of all removal orders have been appealed since 2000.

And taxpayers are footing almost the entire bill for these cases. That includes underwriting the appeals of aliens ordered removed because they are convicted criminals or engaged in marriage fraud to try to stay in the United States. The judges are also severely overloaded. In 2006, 233 immigration judges handled almost the same number of cases as our 1,271 federal district and appeals court judges.

What is clear from the CIS report is that Congress needs to engage in rigorous oversight of DOJ and DHS over their handling of immigration cases and their failure to enforce deportation orders. A good first step would be to have the Government Accountability Office conduct an intense, detailed audit. The American public deserves an accurate account -- not deceptive information -- about how its immigration court system is working ... or not working.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in The Examiner