Agencies struggle to get a handle on illegal immigrants

Last year, the government had a banner year in kicking out illegal immigrants. By spending billions of dollars on apprehension, detention, and legal processing, by devoting millions of staff hours to the effort, and by pushing through get-tough policy changes, the feds managed to deport a record 200,000 foreigners.

That's the equivalent of deporting the entire population of Montgomery, Ala. Of course, immigrants residing illegally in the United States now number 12 million, equivalent to the combined populations of New York City and Chicago. Every year, another 500,000 come in and stay illegally.

More than 100,000 of the illegal aliens whom the government nabbed last year managed to slip through officials' fingers. The Homeland Security Department estimates that half a million "absconders" -- immigrants who ignored a deportation order or failed to show up for a court date -- are still in the country, somewhere.

Victor Cerda, former chief counsel of DHS's Immigration and Customs Enforcement division, said that Congress would have to give immigration and border-control agencies "a Pentagon-sized budget" to halt all illegal immigration and to locate and expel the 12 million illegals already here. "Even if they gave [DHS] that money overnight, you're looking at a 10-year process to do the hiring, put in the technology, the processes" to bump up the deportation rate.

Cerda, now a partner in the Washington office of the Miami-based law and lobbying firm Tew Cardenas, explained why that's not going to happen: "There's this principle called reality."

Leaving aside the social and economic disruptions that deporting millions of longtime residents would cause, the reality is that the Homeland Security Department, the Justice Department, and the federal courts -- the three entities that constitute the justice system for illegal aliens -- are already overwhelmed by the few hundred thousand immigration cases they handle each year. DHS continually runs out of bed space for detained immigrants; the overcrowding leads officials to release thousands of detainees into this country, where they often disappear.

The Justice Department is reassigning its lawyers -- even from its Environmental and Natural Resources Division -- to help handle the immigrant caseload. "Virtually every office in the department has been tasked with writing at least some immigration briefs," Deputy Assistant Attorney General Jonathan Cohn told the Senate Judiciary Committee at an April 3 hearing on proposals to deal with the flood of immigration cases in the legal system.

Federal judges have been unable to keep up with a sixfold increase in immigration appeals since 2000; each appeal now takes an average of 27 months. And that's after the case has spent several months wending its way through the Homeland Security and Justice departments.

Virtually no one is satisfied with the current system. Immigration advocates complain that it treats immigrants poorly -- detaining them for too long and denying them due process rights that American citizens hold dear. Immigrants are not guaranteed the right to counsel. Front-line Homeland Security officials decide thousands of cases without granting the opportunity for judicial review. Families are routinely separated, with children sometimes detained hundreds of miles from their parents.

"How can we deal with human beings this way?" Michael Greco, president of the American Bar Association, asked in an interview with National Journal. "In America, from the beginning, we have not treated people this way. That is what has made America so revered and respected around the world: We take care of people. With the way we're treating immigrants, we're losing that wonderful respect that we've earned."

Some people criticize the legal system for its treatment of foreign nationals, and some gripe about how it lets a large percentage of detainees slip out of its grasp. Nearly everyone who knows anything about the system agrees on one thing: It's busted.

A Tortuous System

Three quick examples illustrate the many complex problems facing the legal system for immigrants. They also show that illegal residents who have very deep roots in this country are sometimes treated far more harshly than those who have no U.S. roots at all.

• Salvadorans, unlike illegal border crossers from other Central American countries, cannot be deported until an immigration judge has weighed in, thanks to a nearly 20-year-old court order handed down while El Salvador was engulfed in a civil war. U.S. officials usually don't even detain El Salvadorans caught after they have illegally entered this country. Agents simply give them a "notice to appear" before a judge and set them free. And because detention centers have only 28,000 beds, many illegal immigrants from other countries are detained just long enough to get a court date; sometimes, they're released simply because the government needs a bed for someone with a criminal record. More than 100,000 "notices to appear" were ignored last year.
• A 53-year-old woman from Barbados, who had long been a legal U.S. resident, died of a heart condition while sitting in jail during deportation proceedings. She had been convicted of drug possession years before, but authorities had allowed her to remain in the United States as a permanent legal resident. She was never flagged for deportation until years later, when she showed up at a U.S. airport after a trip to Barbados. Her family's lawyer says she was detained only after returning to the airport for a third time to try to work out the problem, showing she wasn't a flight risk. She was also the primary caregiver for her 1-year-old granddaughter.
• A 23-year-old Guatemalan woman now detained in Hampton Roads, Va., was brought into the country illegally when she was a little girl. A few years later, she was stopped along with her mother by U.S. agents while returning from Canada; border agents allowed them back into the United States but ordered the family to move out of the country. They stayed. After the now-grown woman got married two years ago, she applied for U.S. citizenship, but because of the outstanding order, she was held and is being processed for deportation, leaving her American husband to care for their son.

These examples illustrate the three main ways that illegals fall under the control of U.S. immigration authorities. The most common way is to be caught by the Border Patrol, which polices the vast expanses of territory between legal border crossings and the areas within 100 miles of a border. More than 1 million of the 1.2 million aliens rounded up by the Border Patrol in 2004 were Mexicans. Most were quickly fingerprinted, recorded, and dropped back across the border to try again.

The remaining 200,000 "other-than-Mexicans," or "OTMs" in Border Patrol parlance, were either detained while their cases were decided or were let loose in the United States after being instructed to show up in court on a given date. (The OTMs cannot simply be sent back across the Rio Grande, because Mexico refuses to accept them.)

The second way to get into the legal system is to be stopped at an official border crossing by immigration inspectors, who, like Border Patrol agents, work for DHS's Customs and Border Protection bureau. Inspectors blocked 384,000 people from entering the country in 2004. About 317,000 of them voluntarily turned around and went home. The remaining 67,000, like the Barbadian grandmother, were detained while their cases were heard or were released in the United States and asked to appear in court.

The third way is to be caught well inside this country by Immigration and Customs Enforcement. ICE agents focus on arresting criminals and people who threaten national security, but they also conduct workplace raids and nab immigration violators who attempt to get legal status through U.S. Citizenship and Immigration Services, which is also part of Homeland Security. In 2004, ICE's 8,000 agents caught 80,000 illegal immigrants inside the country.

Why only 80,000 out of an estimated 12 million? "ICE and DHS are forced into a position of prioritizing," Cerda said. "Do we want them to go after the criminal who molests people and the drug dealer? Or do we want them to go after the day laborer outside the 7-Eleven who is going to be hired to do an addition to a house?" Since so many of ICE's catches are wanted in connection with non-immigration-related crimes, most are jailed until they are cleared, sent to prison, or deported.

After Homeland Security grabs immigrants, the department's officers have the authority in some instances to interview them and deport them quickly, without further review. DHS has been increasingly relying on such "expedited removals" to free up space in detention centers and to reduce the number of immigrants who just get released. In 2004, the United States deported some 46,000 illegal immigrants without review, and that number has been growing, according to Homeland Security officials and immigration advocates.

"Many summary procedures are used today that were rarely used in the past," said Meredith Linsky, a lawyer in Harlingen, Texas, who coordinates lawyers who provide pro bono help for border crossers.

Even with the increase in expedited removals, judges decided 265,000 immigration cases in 2005. Those judges work for the Justice Department's Executive Office for Immigration Review, the only vestige of the dismantled Immigration and Naturalization Service that was left at DOJ when Congress created Homeland Security in 2003.

With a Justice Department immigration judge presiding, Homeland Security lawyers present the argument for deportation -- and prevail more than 80 percent of the time. Last year, two-thirds of the immigrants represented themselves.

The losing side can appeal to the Board of Immigration Appeals, one layer up in the Executive Office for Immigration Review. The board's members review the case files and decide whether to affirm or reverse the original decision or to send the case back down to an immigration judge. A spokeswoman said that the office does not keep statistics on how often the board sides with immigrants or how long the average case is pending before the board. She did say that the board handled 46,000 appeals last year.

The board's ruling can be appealed to a federal appellate court, the first level at which a case moves out of the executive branch. Last year, 12,000 cases made it to appellate courts. Again, the immigrants usually lose. (Immigrants who have been caught crossing the border illegally multiple times can end up before U.S. magistrate judges, who handled 20,000 such cases along the southern border last year.)

This complicated legal system has three potential outcomes: Immigrants go home, get to stay legally, or become fugitives. Last year, 200,000 were deported and 40,000 were granted legal status. More than 100,000 absconded at some point during the legal process; Homeland Security estimates that it actually deported only 66 percent of the aliens whom it had orders to deport.

"Catch and Release"

Appellate courts now take an average of more than two years to hear and decide an immigration case. And that's after months of legal wrangling within Homeland Security and Justice. As the process drags on, a detained illegal alien whose only crime is an immigration violation is increasingly likely to be released, because detention centers need to house hard-core criminals and repeat offenders.

Immigrants and their lawyers know all of this. Many advocates for tougher enforcement want a swifter process that would allow fewer illegals to disappear into the woodwork. "Only in immigration do you see a benefit of delay, of remaining in the system," said Michael Hethmon, general counsel for the Immigration Reform Law Institute.

Even with its 28,000 beds, Homeland Security simply cannot hold the huge numbers of non-Mexican illegal aliens corralled near the Mexican border. As a result, it routinely resorts to what can aptly be called "catch and release."

At an April 6 hearing of the House Appropriations Subcommittee on Homeland Security, Chairman Harold Rogers, R-Ky., noted, "The bed space we have is nowhere near a drop in the bucket compared to the people you stop." ICE chief Julie Myers responded, "We do have a problem with absconding, yes, sir."

To reduce the number of immigrants who get the chance to disappear, Homeland Security has stepped up its expedited removals, thus denying immigrants the opportunity to see a judge. Immigrants in expedited removal are held for an average of 22 days, after which they are flown back to their countries. In contrast, it takes an average of 89 days for immigrants who get a court hearing.

By increasing the number of available beds and the number of expedited removals, DHS aims to end "catch and release" by October. But achieving that goal will be tough, in part because illegal immigrants' home countries often refuse to cooperate. China, for example, refuses to take its people back, and so American officials tend to simply release them. Some 39,000 illegal immigrants from China are living in the United States despite final deportation orders.

Immigration advocates say expedited removal -- putting the life and liberty of aliens in the hands of bureaucrats -- is unfair. "One of the major problems with the system is the [difficulty of getting an immigrant's] case heard by an impartial adjudicator," said pro bono coordinator Linsky.

The American Bar Association is urging Congress to eliminate expedited removal and to guarantee immigrants the opportunity to appear before a judge. The ABA and immigration advocates also want the government to reduce the use of detention and to rely instead on supervised release programs, using ankle bracelets and regular check-ins, for example.

On April 6, DHS reported that a supervised-release pilot project conducted with 2,900 immigrants over the past couple of years showed great promise, with 94 percent of immigrants remaining in the legal system throughout the adjudication of their cases.

The government is also trying to streamline the process as a way to cut down on absconders. In 2002, then-Attorney General John Ashcroft issued a memorandum that allowed more cases to be decided by just one Board of Immigration Appeals judge rather than the typical three-judge panel. Ashcroft's directive also authorized the board to issue one-line rulings rather than having to explain its rationale for upholding an immigration judge's decision.

Such "streamlining" has sparked allegations from immigration advocates that the board has become a rubber stamp and is failing to treat immigrants fairly. Federal judges, too, are critical.

In a December 29 decision involving an asylum seeker, the Court of Appeals for the 7th Circuit blasted the board and the Justice Department's Office of Immigration Litigation, which presents the government's side in appellate courts. "The performance of these federal agencies is too often inadequate," Judge Richard Posner wrote for a three-judge panel. "This case presents another depressing example."

In response to such complaints, Attorney General Alberto Gonzales, whose grandparents were Mexican immigrants, launched a top-to-bottom review of the Justice Department's immigration case procedures in January. Cohn, the Civil Division deputy, recently urged the Senate Judiciary Committee to wait for the results of that review rather than reacting to immigration advocates' charges by enacting legislative changes.

Cohn told the lawmakers that DOJ supports some proposals that would reduce appellate courts' ability to review immigration cases. The Judiciary Committee is considering a plan to shift all immigration appeals from the regional appeals courts to new, specialist immigration judges on the U.S. Court of Appeals for the Federal Circuit, which is located in Washington, D.C.

The plan is intended to reduce the disparity in rulings. For example, on asylum pleas, decisions ranged from 9 percent approval in the 5th Circuit, which includes Texas, to 33 percent approval in the 9th Circuit, which includes California.

Speed Versus Safeguards

The various proposals for overhauling the legal system for immigrants stem from two conflicting desires: Some people want to kick illegal immigrants out of the country quickly, and some want to give them more of a chance to make the case that they should be allowed to stay.

Because the legal system is complicated and because so many immigrants are entering this country without proper documents, efforts to move in either direction tend to have unintended consequences. Take Ashcroft's attempts at streamlining, for example.

Between 2001 and 2005, appeals from the Board of Immigration Appeals to the appellate courts skyrocketed -- from 1,757 to 12,349. Judge Carlos Bea of the 9th Circuit gives two reasons for the spike. First, immigrants don't think they're getting a fair shake at the Justice Department anymore. Second, as court appeals began to mount, more immigrants started appealing in order to take advantage of the backlog and extend their stay in America. Thus, an effort to reduce delays actually increased them.

And even as Justice tried to speed up its approval of deportation orders, Homeland Security lacked enough officers to carry them out. Last year, the ICE office responsible for making sure that immigrants leave the country once they're ordered to failed to meet its goal of deporting 81 percent of them. ICE was able to deport just 66 percent. "Hiring restrictions, attrition, etc., contributed to not meeting the target," DHS stated in its annual report.

While Homeland Security officials say they have been beefing up staff, Rep. Rogers said that appropriators remain skeptical. The department does not have a strategic plan to make U.S. borders secure, Rogers warned: "No plan equals no money."

Meanwhile, in pushing for more mercy and legal protections, immigrant rights groups point to people who have suffered in the system. Because the government maintains separate detention facilities for adults and children, families that cross into the country illegally are routinely separated.

The U.S. Commission on International Religious Freedom, in a review of asylum seekers last year, found that many were detained in conditions more appropriate for criminals than for possible victims of persecution seeking freedom. The government commission also complained that asylum cases were handled inconsistently.

"The outcome of an asylum claim appears to depend not only on the strength of the claim, but also on which officials consider the claim and whether or not the alien has an attorney," the commission concluded in a report. Most asylum seekers are too poor to hire a lawyer. Twenty-five percent of those with legal representation won legal status, compared with only 2 percent of those without attorneys.

Hethmon, whose institute supports tougher enforcement, contends that there's little evidence that most asylum seekers who are denied entry actually face persecution or death back home, as did Jewish refugees who were turned away from the United States in 1939 and returned to Nazi Germany. "I can't find any evidence of that," Hethmon said. "The due process question in immigration is kind of a straw man."

A Broken System

With complaints rising both from those who support tougher enforcement and those who advocate more leniency for illegal immigrants, Congress is now struggling with how to fix America's broken system.

Increasing the number of border agents and adding tougher penalties for illegal immigrants, as the House calls for in its legislation, would add more defendants to a legal system that is already groaning under the weight of a few hundred thousand cases a year. But creating a new path to legalization, as the Senate Judiciary Committee proposes, could also flood the system.

Cerda, the former DHS counsel, agrees with Linsky and other immigration advocates who say that if the United States does not develop a legal way for foreigners to work in this country, they will continue to enter illegally. "The lure is there: the jobs, the money, the hope of a better life for their families," Linsky said.

Enforcement advocates, meanwhile, argue that the government should crack down on employers of illegal immigrants as a way to reduce the demand for illegal labor -- and ultimately reduce the supply. They also argue that detention policies and quicker removal proceedings act as a deterrent: More detention and faster deportation would reduce the flow of immigrants into the justice system, they say.

One basic fact is that the government will need more judges and lawyers and agents if it wants to force more illegal aliens out of this country quickly. Another is that the government will have to hire more judges and lawyers and agents if it wants to give more illegal aliens the chance to make their case to stay.

"If we're going to make this massive immigration reform bill work, we're going to have to make sure, whether it's the Justice Department or the judiciary or Homeland Security, that the staff is there to process the work," said Sen. John Cornyn, R-Texas, at the Judiciary Committee hearing.

A third basic fact is that if Congress does nothing, immigration cases will continue to overwhelm the U.S. justice system. As Cerda puts it, "The bottom line is, if nothing gets passed, the system remains broken, and everyone loses."