Immigration Courts Allowing More Migrants to Stay in U.S.

Midway through fiscal year 2021, U.S. immigration courts are allowing significantly more illegal aliens to remain in this country.

Of 68,962 deportation cases processed, only 42 percent resulted in removals, the lowest percentage since 1988. Court-ordered deportation rates during the previous four years ranged from 57-72 percent. On the current trajectory, court deportations this year will be less than half the totals recorded in either 2020 or 2019.

Court watchers are not sure why this is happening, but we have some ideas.

Austin Kocher, chief researcher at the Transactional Records Access Clearinghouse (TRAC), points to court closures during the coronavirus pandemic. While that surely exacerbated the backlog of cases, now numbering 1.3 million, curtailed court hours do not explain the disproportional shift away from deportations.

One possible explanation is that immigration courts are taking new cues since Joe Biden’s election last November (five weeks into the fiscal year). Because immigration judges are hired by the Justice Department and ultimately answerable to the attorney general, courts are never fully insulated from political agendas and considerations. It’s notable that the uptick in court-ordered deportation rates during the Trump era followed a steady decline in the last four years of the Obama administration.

In the courts agency’s most recent testimony before Congress in 2019, the previous director James McHenry said the agency under Trump “made considerable progress … in restoring its reputation as a fully functioning, efficient and impartial administrative court system capable of rendering timely decisions consistent with due process.”

The Biden administration’s open-borders philosophy moves in a dramatically different direction. This month, for example, the White House announced a new “right” for migrants appearing in immigration court: access to government-appointed legal representation.

With more than a million immigration cases pending, and free attorney services becoming available to illegal aliens, the judicial maxim of “justice delayed is justice denied” carries other implications. It all comes down to the definition of “justice.”

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