Monday, April 25, 2016

Bottleneck Between Enforcement at The Border and The Courts

Guest blogger: Frank Gould, first-year law student, University of San Francisco

From the Clinton administration forward, there has been a militarization of the United States/Mexico border.  This was exacerbated after 9/11, after which cries for securing the border are an easy way to pander to one’s constituency or are seen as desirable policies, or an easy way to scare voters.  From 1993 to 1997 the INS budget for enforcement along the southwest border increase from $400 million to $800 million.  The total increase from 1990 to 2011 is staggering-- INS enforcement was increased from $262 million to $3.5 billion.  As a result, more immigrants were detained and the human cost has been steep.  A large part of the militarization was due to Operation Gatekeeper, which cut off the easier routes to the United States, forcing non-citizens to cross rugged and dangerous terrain. 

The logic of Operation Gatekeeper was that if the path into the United States was dangerous enough those seeking entry illegally would not want to take the risk of passing.  This logic was shown to be flawed as migrants still tried to cross; the only thing that changed was the number of deaths.  In 1994, 23 migrants died due to hypothermia, heatstroke and drowning, this number increased to 499 by 2000, with more than 10,000 dead between 1998 and today.  However, despite the fact that the path is dangerous and that many are caught and deported, migrants are not deterred.  Much of this is because the reasons for fleeing their home country is worse than the risk of what is faced upon crossing.  One way to alleviate the number of crossings is to address the issues in the country being fled. This is an important factor and will take a long time.

Another way to alleviate this problem is to address the bottleneck between enforcement at the border and the immigration courts.  Billions of dollars are being spent on the enforcement and detainment side of immigration, which leads to a large number of apprehensions and detentions.  As a result, the dockets of immigration courts are flooded.  There are roughly 215 immigration judges in the country, each having an average of 1,600 cases per year; contrast that with 350 cases for a full-time federal judge.  The current backlog is over 450,000 cases, and the focus of the courts is to clear the backlog.  An immigration judge can hear dozens upon dozens of cases in a single day.  In many cases, the consequences are severe for the applicant if they are deported.  The immigration judges are aware of the stakes, however, they also are pressured to clear the docket; while a case may require more attention, there simply isn’t enough time.  The stress of being forced to make harsh rulings with short time and being handcuffed administratively takes a toll on an immigration judge.  This may be a reason for some of the harsher or ostensibly unexplainable decisions. 

The questionable decisions that are generated from this environment do not engender confidence in the immigration system for those seeking to enter the country.  If a potential applicant sees that they will not get a fair hearing and that their case will not be resolved for a long time, then the potential applicant may opt to enter without inspection.  Because of the bottleneck caused by our zeal for performance, we have rendered the judicial arm ineffective and untrustworthy.  If we cannot fairly deal with those who we detain, then we cannot say that there is a viable legal path to citizenship.  By transferring some funding from enforcement to the immigration courts there will be less of a backlog; better decisions would engender more confidence in the system.  If there is more confidence in the system, then some will be less compelled to risk the dangerous journey to the United States, because they will get a fair shot upon inspection.  It isn’t a silver bullet to the problem, but what is?

bh

https://lawprofessors.typepad.com/immigration/2016/04/bottleneck-between-enforcement-at-the-border-and-the-courts.html

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