Many well-meaning US citizens believe that America must do all it can to help the poor illegals coming in mass numbers across the border. They claim it is our moral and American duty to help them at any cost, irrespective of how many are coming. As a conservative immigration lawyer, I can testify firsthand that this sentiment is wildly misguided. There are bigger forces at work fueling the illegal migration issue. Often overlooked, the immigration courts themselves play a significant role in attracting border crossers. But how bad is the problem?
My practice deals mainly in family-based immigration (green cards through family members), naturalization, and removal (or deportation) defense. I focus on Eastern Europe, but have clients from countries on five continents. I am in immigration court several times per week and have seen with my own eyes the precipitous decline of the courts.
The system has gotten worse, not better, over time. Virtually no screenings are done at the border for legitimate asylum claims. Enforcement of removal orders is abysmal. In fact, after losing a hard-fought case, an immigration judge told my distraught client off the record that even though he had not prevailed, he could just stay in the US because ICE wouldn't enforce his removal anyway.
There are other issues. Recently, I've heard immigration judges discussing mass retirements due to the election, fearing their liberal biases would be curtailed.
When I began more than 25 years ago, the entire federal immigration court system had about 100,000 removal cases total, spread across the country and overseen by about 200 judges. In Chicago, the average time from issuance of the Notice to Appear (the basic charging document for removal) to the initial master hearing was about 5 months. It then took about 2 years until the full hearing on the case.
By 2006, with the ramp-up of immigration enforcement activities under the George W. Bush administration, the backlog started to increase significantly and hit about 300,000. By the end of the Obama administration, the backlog had grown to about 520,000 cases. The total number of judges had only increased to around 400.
By 2020, at the end of Trump's term in office, there were about 1 million cases pending.
However, due to the unprecedented policies of the Biden administration, such as his 90 Executive Orders effectively opening the border, the backlog as it stands is around 4 million cases!
But that is not all. There are approximately 10 million illegals who have been issued Notices to Appear that have NOT been filed in immigration court. Immigration and Customs Enforcement simply has not forwarded or filed these cases with the courts, so the illegals are here, with work cards, with no dates whatsoever to come to court.
If not shocking enough, it is estimated another 4 million cases have been dismissed from removal by Biden under the so-called "prosecutorial discretion" doctrine. If the government sees a case that is of lower priority, it simply dismisses all removal charges, leaving the person free with no requirement to report in the future ever.
Thus, we are looking at nearly 4 million in court and another 14 million who are somewhere in the process with around 700 judges to handle them. This means that each judge is responsible for around 6,000 cases officially and another 20,000 unofficially. The average wait times for the initial hearings can easily exceed seven years in many courts, but this is increasing exponentially. Getting to a final resolution can easily take decades.
Part of the problem lies in the broken asylum system. When an illegal surrenders, he simply claims "asylum" (as he has been coached to do by various agencies, coyotes, or NPOs). He checks one of five boxes as the reason (political, religious, race, nationality, oppressed minority), and he is given his NTA. Maybe that is filed with the court and maybe not. Maybe he has a legitimate claim and documentation, often not. Rarely, he supplies a personal statement describing his persecution.
If the alien's NTA is not sent to court, within 150 days, he can apply for a work card (Employment Authorization Document), now valid for 5 years and renewable. He is issued a social security card. At this point, he begins receiving thousands in benefits depending on the city and state where he resides. Many are fast-tracked into CDL programs without English-language requirements in order to meet trucking demands, for example. Virtually none of these people are ever vetted due to the sheer number of cases and lack of global information available. Less than 10 percent, I would surmise, based on anecdotal evidence, ever pay income taxes while they are here. Many falsely claim US citizenship to get house loans or credit cards they never intend to pay. I won't even go into crimes that are committed while they are here.
If they are sent to court, the case is scheduled for an initial master hearing, often two to three years down the road. The i-589 asylum form is never checked or pre-screened for at least a modicum of plausibility. No initial documentation is ever required. Cases are rarely reviewed to see if they even meet the prima facie standards of a legal case.
I should point out that I only assist in provable, documented, legitimate claims of asylum. However, I do have people in my office who have been helped by notarios (a pejorative describing non-US-born charlatans with a notary public license helping immigrants underground) with these blank and/or fraudulent forms. Thus, I screen out a significant number of clients before I even take a case.
Of note is the sheer amount of fraud that I have seen amongst these newly-arrived individuals. Illegals often claim LGBTQ status, even though they are really in a heterosexual relationship with another illegal claiming the same thing. They may use a simple fight from their childhood and make up racial reasons for the attack and argue large-scale persecution, extrapolated from these ordinary incidents. They sometimes claim a change in religion that miraculously happened only after they discovered religion might be an asylum basis. They sometimes claim political persecution without any evidence of being politically active. During the process, they pay a willing US citizen to commit marriage fraud. The types of fraud are endless. These people have been coached on winning issues by notarios or NGOs or friends who have won such specious cases.
After the initial master hearing, the case is set for an individual hearing, very often 3-8 years further down the road. This individual hearing provides for either three or four hours for the illegal respondent to present his case. This means that every person with a claim, whether or not legitimate, is allotted a judge's precious time that could be reduced to around 20-30 minutes had there been pre-screening of the case. This would still comply with all rules of due process, as the asylum claim is an administrative procedure, not a criminal one, and most cases on their face are quickly adjudicated.
All this assumes the illegal alien even shows up for the hearing. The Center for Immigration Studies puts that number at around 43%.
With each judge currently having a minimum of 6,000 cases on his plate as of today's numbers, and each case taking 3 hours minimum just for the individual hearing, one can see 18,000 hours per judge would be necessary to clear the load, assuming no new cases ever. There are only 2,080 hours in an average person's year-long work week. One can see the ridiculousness of the situation.
If the alien loses his case, he is charged with misdemeanor violation of U.S. Code Title 8, Section 1325, improper entry by an alien or U.S. Code Title 8, Section 1326, reentry of removed aliens. However, because the decision is administrative, there is no criminal conviction. The illegal alien has a right to file an appeal within 30 days (and then he waits for the 3 or 4 years for the Board of Immigration Appeals to hear the case) or he simply avoids removal by disappearing. Very rarely does ICE issue a "bag and baggage" letter.
Because everyone in the world knows the situation in the US, the impossibility of a case ever being heard is touted as a feature and not a bug. It drives corrupt foreign agencies and organizations to recruit people to go to the US. Many pay enormous amounts or become indentured servants to be in the US. NGOs facilitate not only travel but also hook these illegals up with every benefit possible. Entire underground operations exist to move the people here. The Biden administration provides plane tickets for hundreds of thousands more to come, skipping the border issue entirely. An article from the Center for Immigration Studies states that 320,000 migrants from Cuba, Haiti, Nicaragua, and Venezuela were flown into the U.S. in 2023 via Biden's programs.
Yes, the system is broken. The courts are broken. The Biden administration has only made it worse.
Returning to the moral argument, is the US actually morally obligated to provide every resource possible for this illegal migration and exploitation of the system? In short, absolutely not.
Yes, we should help in extreme and legitimate cases, but this can be facilitated 99% of the time by the Wait-in-Mexico or Wait-in-Canada programs or by filing directly at the US embassy in their own country. We can vet the cases in a country where they will not be harmed without having such an enormous strain on our system and without placing them into the overburdened US courts. We can also adjudicate the cases quicker because they are not presented as adversarial cases but cases of credulity and documentation.
I went into immigration law because, even though I am extremely conservative, I saw it as a way to help people become new, productive Americans. I grew up with the thought that those coming here wanted to assimilate and improve our country. But that quickly changed. Within a couple of years of practice, I saw ridiculous amounts of fraud taking place. I heard these people repeatedly say they are here for the sole reason of exploiting an idiotic country. Sadly, it is rare for a client of mine to love America and want to become one of us, even when he has a legitimate case. The goal is always the same. Take as much as you can from the weak US, and exploit us as long as possible before the gravy train ends.
The number of calls I get asking me how to get social security benefits and pensions for people who just arrived and brought their elderly parents is shocking.
Can we fix the system? Unquestionably. There are a thousand ways our system could be improved, from better screening with officers abroad or at the border, to increasing the standards for asylum, to eliminating the benefits we give out, to radically fixing the court system - all ideas that could be done to disincentivize the mass influx of people with illegitimate asylum claims.
But I see hope. The elections proved, if nothing else, that today, the American people want change. It proved that Americans have hearts and a moral compass. But it also proved that we have enough intelligence to see America is on a destructive path if the status quo continues.
Comments