On a chilly December morning in 1998, two INS agents entered a small grocery story on the South Side of Chicago. Moments later, they emerged with a man in handcuffs and quickly placed him in the back seat of a government vehicle. The 36-year-old man from Hyderabad, India, had entered the U.S. as a visitor in 1994 and soon after entered into a fraud scheme to obtain legal status in the U.S.
But he needn’t have been too concerned.
To this day he has not faced a deportation hearing. An immigration judge has granted several continuances, each one delaying his hearing for several months. His next hearing is scheduled for December, four years after his arrest and eight years after he entered the country.
Because I was one of the agents who arrested the man and have seen this scenario many times in my 22 years with the INS, I know that the story is not unusual. It is almost standard operating procedure in a system that has frustrated law-enforcement professionals for years. It illustrates the need for serious reform of immigration courts, part of the Executive Office for Immigration Review, an agency separate from the INS that reports directly to the attorney general.
To his credit, Atty. Gen. John Ashcroft has proposed reform of one segment of the review office system, the Board of Immigration Appeals, which hears appeals of decisions made in local immigration courts.
The appeals board has a backlog of about 56,000 cases and has not even taken up many cases it received as long ago as 1997. About 34,000 cases pending before it are more than a year old, and 10,000 more are at least 3 years old. Ashcroft correctly viewed this situation as a potential threat to the security of the U.S. because it provides, through appeals, a convenient instrument for delaying deportation.
On Feb. 6, 2002, Ashcroft announced changes that would require the appeals board to dispose of cases far more expeditiously by directing that decisions be made within specific time frames. Many cases would have to be decided within 90 days of their arrival at the appeals board, and all incoming cases would have to be decided within 10 months. He has even proposed reducing the number of judges in the appeals board from 23 to 11, recognizing that the problems are systemic and have not been solved by enlarging the court.
Laudable as these measures are, they do nothing to address local immigration courts, which deal with the largest volume of cases. Referring to the 271,000 cases received by the review office every year, Ashcroft said: “Most of [these cases] move through the trial-level immigration courts in a timely manner.”
But information furnished by the review office disputes his statement.
According that information, about 35 percent of all cases handled by local immigration courts are custody cases, which involve an immigrant detained by the government as his or her case works its way through the courts. The real problem is in how it handles the other 65 percent of its caseload.
These are non-custody cases in which the immigrant posts bond and is released or is not required to post bond as proceedings commence. This is the great “black hole,” as it is known by INS enforcement personnel, the place where people get lost in a system of seemingly endless continuances and delays, and where years often pass without decisions being made.
Almost a year
The review office reports that the average time it takes for immigration courts to make decisions in these cases, from the time formal charges are made by the INS to the time a judge enters an order, is 344 days.
It gets worse in larger cities.
In Chicago, for example, it takes an average of 592 days to dispose of a case. In New York, it takes an average of 730 days, and in Los Angeles it takes 840 days. This hardly qualifies as moving in a “timely manner,” particularly when you consider that in at least 90 percent of these cases, the evidence of deportability is clear and overwhelming.
Even when a decision is finally made in a local immigration court, by filing an appeal, the immigrant usually can be assured of another couple of years in the U.S. In cases that originate in Chicago, for example, appeals take an average of 995 days to adjudicate. If that appeal is dismissed, the federal appeals court awaits. Another year or two passes. All this time, the immigrant is allowed to remain in the U.S.
To highlight Ashcroft’s legitimate security concerns, consider that among the 115,637 non-custody cases now pending before immigration courts, almost 8,000 involve people from countries identified as Al Qaeda strongholds. It is clear that under the current system, entering and remaining in the U.S. are not among their primary challenges.
What type of reform, then, is needed to streamline the system? It would make sense to eliminate the discretion now afforded immigration judges in favor of a system that allows continuances only under certain specific circumstances and to limit the delay time to 30 or 60 days. It could also be required that hearings be scheduled within days of issuance of deportation charges and that a final decision be rendered within another 90 days.
Long-distance supervision
Another obvious problem is the lack of on-site supervision of judges. Under the current system, the supervisor of the judges in the Chicago office is an assistant chief judge in Washington. How much real supervision can be exercised from the capital? A chief judge with full supervisory authority should be installed at all review office locations in large cities.
It is unfortunate that measures like these are necessary. But history has shown that if wide discretion is granted, some will abuse that discretion to the detriment of the system.
In April, the House voted to abolish the INS and divide its functions between two separate agencies. Coupled with Ashcroft’s proposals to reform the appeals board, the only component of the immigration bureaucracy that has not been slated for reorganization or reform is local immigration courts, which many knowledgeable officials see as most in need of an overhaul.
