NCPA - National Center for Policy Analysis


June 28, 2010

We all know how bad the federal government is at controlling our border, but we face the same problem in the system set up to handle immigration cases.  Many people do not realize that illegal aliens who are caught end up in immigration courts that are part of the Justice Department's Executive Office for Immigration Review (EOIR).  These courts are presided over by administrative judges; they are not Article III federal courts, says Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation and a former Justice Department official. 

According to Mark Metcalf, a former immigration judge: 

  • From 1996 to 2008, the United States allowed 1.8 million aliens (many of them here illegally) to remain free upon their promise to appear in court when their cases were scheduled to be heard, and 736,000 of them never showed up for their hearings.
  • After 9/11, court evasion by illegal aliens exploded -- from 2002 to 2006, over 50 percent of all aliens summoned to court disappeared. 

Of course, you'd never know this from the numbers reported by the EOIR because it masks the true numbers by manipulating its statistics, says Metcalf: 

  • For example, in 2005 and 2006 EOIR reported to Congress that the "overall failure" rate of aliens "to appear" in court was only 39 percent.
  • The real number of aliens who were free pending their court date who then failed to appear was actually 59 percent.
  • EOIR got the deceptively lower 39 percent figure by combining the appearance rates for aliens who were free pending a hearing and aliens who were actually in jail. 

Combining these groups makes the skip rate look lower than it really is, says Metcalf: 

  • Only 9 percent of aliens who lose their cases actually bother to appeal; most of them just walk away and disappear.
  • Those dodging deportation orders issued by immigration judges number in the hundreds of thousands; in 2002, there were 602,000 backlogged deportation orders; in 2008, 558,000 remained unenforced.
  • Of those ordered deported, 45,000 were illegal aliens from countries that, according to DHS, abet terror.
  • The highest arrest rate for aliens ordered deported was achieved in 2008 when 6.1 percent were apprehended.  

Source: Hans von Spakovsky, "A Broken Immigration Court System," Heritage Foundation, June 21, 2010. 

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