Among the various issues that came newly into focus with Donald Trump’s speech to Congress on Tuesday, the question of immigration stood out. Hours before the speech, Trump seemed to shift away from his controversial hard-line approach, telling TV anchors at an off-the-record White House session that he could consider legislation to open the way for millions of undocumented immigrants to remain in the US. Then, in the speech itself, Trump made a different emphasis, saying that, “I believe that real and positive immigration reform is possible, as long as we focus on the following goals: To improve jobs and wages for Americans; to strengthen our nation’s security; and to restore respect for our laws.”
In short, he was talking about reforming who comes into the country, not the way we deal with illegal immigrants who are already here. Meanwhile, a revision of his January 27 executive order on immigration, which has been challenged in court, is expected in the coming days.
Who knows what he thinks today?
One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.
The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.
But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?
It was Trump’s own Secretary of Homeland Security, John Kelly, who on February 7 pleaded with members of the House Homeland Security Committee to change the law, saying, “I have sworn to uphold the law. I beg you as a lawmaker, if it is bad law change the law so I can take that particular issue off the plate…Because I have to do what people like you have told me to do within our laws.” Kelly was specifically referring to passing laws to protect the Dreamers, a category of undocumented immigrants who have not been deported thanks to an Obama executive order but who lack any permanent legal status; or one to give more economic aid to Central America to halt the refugee flow north; or a law to deter the demand for drugs in the US to slow the movement of drugs into this country.
While Trump threatens to take our immigration system to new extremes of dysfunction, the patchwork nature of the rules that govern it has a long history. During the Obama administration and even earlier there were cases where, thanks to the capricious decisions of some immigration judges, long-time legal residents of the United States were held in detention for extended periods when trying to return to their families in America after visiting their original homelands—because they had some kind of criminal record.
A class action case currently before the Supreme Court, Jennings v. Rodriguez, involves some one thousand individuals, over half of whom were lawful US residents who, during the Bush and Obama administrations, were held in “prolonged detention without hearings” for longer than six months. They were classified as “arriving aliens” because they had a prior conviction, according to their court filing. Many of the convictions were for minor drug offenses for which the prison sentence turned out to be substantially shorter than the time they were held in immigration detention.
For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.
Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”
The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.
The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?
As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.
Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.
Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.
In response to the 2013 lawsuit, the complainants received some 16,000 pages from the Justice Department’s Executive Office for Immigration Review that showed numerous immigration judges have been accused of “biased or abusive treatment of individuals appearing before them,” according to the AIC. But the names of individual immigration judges and other details about the cases were redacted. Those redactions were appealed and after a lower court declined to side with the plaintiffs and order the removal of the redactions, a panel of the US Court of Appeals for the District of Columbia reversed and sent the case back to the district court to determine whether the public interest is more important than categorically favoring the privacy concerns of the judges.
So before we see any implementation of the Trump proposals, the government will have to confront the fact that whatever policies are introduced will be built atop an already unstable and therefore unsustainable system of immigration statutes.
This became even more apparent on February 20, when Kelly issued his two memoranda on border security and interior immigration enforcement. First is the fact that the memorandum rests on Trump’s January 25 executive order, which is to be replaced by a new version in the coming days.
The opening section of Kelly’s memo creates further confusion. A simple reading suggests Kelly is awaiting a joint Homeland Security/Justice Department plan “to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants,” and “the establishment of appropriate processing and detention facilities.” Until Kelly receives the new plan and the new detention facilities, foreigners who are detained trying to enter the US will be handled “on a case-by-case basis, to the extent consistent with applicable statutes and regulations.”
Kelly suggests that existing practices will be used only when convenient. As he writes, “To the extent current regulations are inconsistent with [this memo], components will develop or revise regulations as appropriate.” However, until revised regulations are approved, he suggests the agency will continue using the existing practices.
Consider the new manpower that has been promised for Homeland Security. In his February 20 memorandum, Secretary Kelly stated that the Trump administration plans to hire an additional five thousand Border Patrol agents as well as five hundred Air and Marine Agents/Officers beginning “immediately.” But as Kelly told Congress in his testimony earlier in the month, it could take years before all those new employees could be aboard. He has called for not only “consistency in training and standards” for the new hires, but also that there are to be “the attendant resources and additional personnel necessary to support such agents as soon as practicable.” In referring to “standards,” Kelly may be addressing the matter of security clearances, because past efforts to expand the number of Border Patrol agents led to the hiring of individuals who not only had questionable past criminal records, but on occasion, were later found to be members of drug cartels.
While leaving these legal and practical issues unresolved, much of Kelly’s second implementation memo seems aimed at generating publicity for the Trump program. It authorizes the Director of the Immigration and Customs Enforcement (ICE) to develop a monthly report on aliens apprehended by ICE “at the earliest practicable time,” and to provide it to the public “without charge.” According to the memo, the information included in the reports “must” include “country of citizenship, convicted criminals and the nature of their offenses, gang members, prior immigration violators, custody status of aliens and, if released, the reason for release and location of their release, aliens ordered removed, and aliens physically removed or returned.”
The ICE Director is also to develop and provide a weekly public report on “non-Federal jurisdictions [i.e. sanctuary cities] that release aliens from their custody, notwithstanding that such aliens are subject to a detainer or similar request for custody issued by ICE to that jurisdiction.”
This report, according to the Kelly memo, should
reflect the name of the jurisdiction, the citizenship and immigration status of the alien, the arrest, charge, or conviction for which each alien was in the custody of that jurisdiction, the date on which the ICE detainer or similar request for custody was served on the jurisdiction by ICE, the date of the alien’s release from the custody of that jurisdiction and the reason for the release, an explanation concerning why the detainer or similar request for custody was not honored, and all arrests, charges, or convictions occurring after the alien’ s release from the custody of that jurisdiction.
Both these reports are to publicize personal data “to the extent permitted by law.” However the Kelly memo states that, “The Department will no longer afford Privacy Act rights and protections to persons who are neither US citizens nor lawful permanent residents,” rescinding guidelines adopted by the Obama administration.
All this would indicate there is time—and a growing need—for Congress to recognize the direction the Trump administration is going and act on reforming the immigration laws before the proposed system leads to chaos.
Walter Pincus is a columnist for The Cipher Brief.