Vice News recently published a piece titled “U.S. Immigration Courts Are Broken. These 5 Charts Show Why.” Rather than showing why the Immigration Courts are backlogged, Vice just demonstrates that it knows nothing about how our immigration system works.
In between utterly pedestrian observations like “there are too many cases and too few judges,” we get stunningly mistaken gems like these:
- Since 2005,”…[immigration]judges have gradually completed fewer cases per year. It’s not because they’re getting lazier; it’s because the types of cases have changed.”
Except that’s not true. According to Syracuse University, the two biggest categories of cases before the Immigration Court in 2005 were entrants without inspection and aliens being removed on other charges (i.e., charges not involving crime, terrorism or national security). In 2019, the two biggest categories of cases before the Immigration Court are – you guessed it – entrants without inspection and aliens being removed on other charges.
And while asylum requests have increased, a competent Immigration Judge should be able to adjudicate those cases in a timely and efficient manner. Claims that a “more nuanced analysis” is required “in order to determine whether the asylum law fits them or does not fit them,” are utter nonsense. Most asylum claims could be reviewed and decided much more quickly if the Immigration Judges hearing them stuck to the law as it is written.
- “In criminal court, prosecutors can use plea bargains to help preserve limited court resources…. But that option doesn’t exist within the immigration court system, because there’s no lesser sentence an immigrant can plea to. The consequence is always deportation.”
Where to begin with this one? Immigration proceedings are civil, administrative hearings – not criminal trials. As the Supreme Court noted in Fong Yue Ting v. United States, deportation is “not a punishment for crime.” Aliens ordered removed from the United States aren’t “sentenced” to anything. They are simply returned to the country where they have a legal right to reside. The philosophical purpose behind deportation is to discourage other foreign nationals from breaking our immigration laws. There isn’t any lesser remedy that would accomplish that goal.
And, to an extent, several forms of civil “plea bargaining” do occur in the Immigration Courts. Certain aliens can admit that they broke our immigration laws, agree to leave the U.S. at their own expense and be granted voluntary departure. If they depart the United States in accordance with the terms of their agreement they will not be barred from returning to the U.S. lawfully. Other aliens may qualify to admit removability in exchange for other forms of discretionary relief. So, individuals in removal proceedings do have some room to negotiate and the consequence isn’t “always deportation.”
- “The closest option [to a plea bargain]is called ‘administrative closure’… though the judge doesn’t grant a visa or specific form of relief, the undocumented person is no longer in removal proceedings.”
That’s a case of comparing applies to elephants. Administrative closure isn’t anything like a plea bargain, which brings a criminal case to a formal conclusion. It is a temporary measure that pauses a case so that parties don’t need to attend hearings while evidence is being gathered or other preparations are being made. Aliens subject to an administrative closure order remain in active removal proceedings, which can be re-calendared at any time.
And, in reality, administrative closures are one of the primary reasons the immigration court is backlogged. The temporary suspension of immigration proceedings has been a popular way to fudge the numbers and make the Immigration Court look like it is reducing its backlog, without really completing any cases.
Should Vice News change its name to Fake News? Unless it does a better job of reporting accurate information about the immigration issue, the answer to that question is an emphatic, “Yes.” Unfortunately, the truth has become a malleable commodity when it comes to immigration reporting.