April 5, 2023
By Tom Homan and Matt O’Brien
There is a massive backlog at America’s Immigration Court. More than 2.1 million cases are waiting to be decided. The bottleneck grows daily as migrants make their way to the border, present themselves to immigration officers and claim asylum. What is the Biden administration doing to whittle down this logjam? Absolutely nothing.
The White House appears to be deliberately attempting to increase the time necessary for the Immigration Court to review and adjudicate cases. In fiscal 2022, the latest year for which complete data is available, immigration judges granted administrative closure in a record-breaking 400,000 cases. That is a 300% increase over fiscal 2021. And there is every indication that the number will increase in fiscal 2023.
According to the Department of Justice, the agency that oversees the Immigration Court, administrative closure is a “docket management tool that is used to temporarily pause removal proceedings.” When a judge grants administrative closure, a case is temporarily removed from the judge’s calendar. It is not put back on the docket until one or both of the parties files a motion requesting that it be rescheduled.
Generally speaking, when a court of law is confronted with a clog in its processing pipeline, it goes into overdrive, trying to hear as many cases as possible. But instead of hiring more immigration judges, building more courtrooms and ramping up production, the Biden administration has chosen to throw nearly half a million cases into legal limbo, where they will languish.
What is really going on here?
For years, the U.S. has been incrementally ceding control over its borders to radical progressives who claim that all foreign nationals have a right to travel to and remain in the United States. But that is a spurious claim. The Supreme Court has been remarkably clear on this point.
In Ekiu v. United States (1892), the court said: “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions, as it may see fit to prescribe.”
A year later, in Fong Yue Ting v. United States, the court noted that “the right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.”
More recently, in Kliendienst v. Mandel, decided in 1972, the court held that unadmitted, nonresident aliens have no constitutional right of entry to this country, whether as a nonimmigrant or otherwise.
Consequently, most foreign nationals who wind up in Immigration Court face an uphill battle. The government need only demonstrate alienage and removability — an easy burden of proof when it comes to illegal aliens, visa overstayers, and aliens convicted of crimes.
In fact, prior to the Biden administration, roughly 73% of migrants who appeared before the Immigration Court were ordered deported. And that wasn’t because American immigration laws are unduly harsh or because immigration judges are biased against foreigners. Rather, it was because the vast majority of aliens who go through removal proceedings don’t have a legal leg to stand on.
Consequently, administratively closing the cases of huge numbers of aliens in deportation proceedings gives them time to attempt to qualify for permission to remain in the United States. Cancellation of removal and unlawful presence waivers are both examples of mechanisms that pardon violations of U.S. immigration law on the basis of positive equities. Ironically, though, these avenues of relief are unavailable to aliens who are promptly removed from the United States because eligibility is dependent upon positive equities that can be accumulated only while residing here unlawfully.
In most other areas of law, getting away with a violation for an extended period tends to result in an enhancement of the relevant penalty. Perversely, our immigration laws actually reward aliens who get away with breaking the law for the longest period of time. If illegal aliens being put in removal proceedings today can delay their hearing for three or five or 10 years, then the possibility that they may qualify for cancellation of removal or a waiver of unlawful presence increases profoundly.
So, by directing U.S. Immigration and Customs Enforcement to move for, or agree to, administrative closure in over 400,000 cases, the Biden administration has essentially turned a docket management tool designed for the convenience of the Immigration Court into mini-amnesty by executive fiat. And word is out all over the world, “Get here and President Biden will bend or break U.S. immigration law to make sure you can stay.”
Tom Homan is a senior fellow at the Immigration Reform Law Institute and the former acting director of Immigration and Customs Enforcement. Matt O’Brien is the director of investigations at the Immigration Reform Law Institute, and previously served as an immigration judge.
Also published at The Washington Times, April 5, 2023.
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