It sounds counterintuitive, but since the failure of comprehensive immigration reform in 2007, the prevailing wisdom in Washington has been that the way to earn public support for allowing this country's approximately 11 million undocumented immigrants a path to citizenship is for the federal government to vigorously prosecute violations of immigration law. Tough enforcement, in other words, will convince Americans that reform is warranted.
To that end, the Obama administration picked up where its predecessor left off -- adding miles of new fencing and hundreds of new agents to the border and deporting undocumented immigrants at a record-breaking pace. The volume is all the more notable given that fewer migrants are coming in illegally and that almost 1 million left voluntarily last year.
The result of the increased enforcement is a mountainous caseload overwhelming the nation's immigration courts. (They are not courts in the usual sense, and do not belong to the judicial branch of government. Rather, judges are employees of the attorney general.) In 2008, for example, 231 judges completed an average of 1,200 proceedings each, and the numbers keep climbing. The work is "like holding death penalty cases in traffic court," Dana L. Marks, an immigration judge in San Francisco and the president of the National Assn. of Immigration Judges, told the New York Times.
A recent report by the American Bar Assn. calls for making the court system independent of the Justice Department to reduce "public skepticism" and increase respect, and paints a harrowing picture in which final decisions are rushed, haphazard and inconsistent. At times the outcome of removal proceedings depends less on the facts of an immigrant's case than on which judge hears the case, the report says. It calls for hiring 100 additional immigration judges as soon as possible, adding new training and requiring more written, reasoned decisions from judges.
Many of the recommendations in the report would require congressional approval. Others should be afforded careful consideration by the Department of Homeland Security. The ABA, for example, calls on DHS personnel to use prosecutorial discretion and stop clogging the system by hauling noncitizens into court needlessly even if they are entitled to remain and claim legal permanent resident status, and litigating cases after the facts make removal unlikely.
A comprehensive overhaul of the nation's immigration laws is now securely on Washington's back burner. That's lamentable because the best way to ease the burden on the court system would be to see reform accomplished. But as the ABA's report demonstrates, there are plenty of changes that should be made in the meantime.