Congressional Immigration Failures Cause Record 1 Million Court Backlog

by Joe Guzzardi

Countless reports, all based on irrefutable federal data, have been published that show immigration non-action has reached crisis level. But no matter how dire the reports’ content may be, meaningful progress that would benefit Americans and immigrants’ alike crawls along at a sub-glacier pace even though true strides forward are within reach.

First, the American Bar Association in its report titled “Reforming the Immigration System” concluded that the nation’s immigration courts are irreversibly dysfunctional and on the verge of collapse. As of August, the total cases pending exceeded 1 million, a 200,000 increase in a single year. Measured since President Trump’s 2017 inauguration, when the total case backlog was 542,411; today’s 1 million case load is so overwhelming that the average wait time is 696 days, an injustice to deserving immigrants.

The ABA noted that migrants with valid persecution claims often have to wait years to be granted asylum, but individuals with non-meritorious claims are allowed to remain in the country for long periods, possibly forever.

Many factors contribute to the soaring backlog. Among them: the Obama era’s lax immigration laws, the 70 lower court rulings against President Trump’s efforts to discourage immigration, and a booming U.S. economy that always provides the pull factor from people across the globe to cross illegally.

Slowing the flow of unlawful workers could be ended quickly with mandatory E-Verify that would confirm an individual’s legal right to U.S. employment. But, indefensibly, Congress refuses to bring E-Verify to the House floor for a full vote even though the program passed previous Judiciary Committees during the terms of prior House Speakers John Boehner and Kevin McCarthy. E-Verify, which Americans strongly support, has the added advantage that it would open up jobs Americans would do in hospitality, construction, manufacturing and retail. As an extra bonus, E-Verify would discourage identity theft, estimated at several hundred thousand incidents annually.

Yet little tangible progress on nationally mandated E-Verify has occurred. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created the Basic Pilot Program, since rebranded as E-Verify. Instead of protecting American workers with E-Verify legislation that would slow illegal hiring, Congress has displayed a quarter of a century of craven indifference. Ironically, every congressional staffer must pass an E-Verify check.

In its June editorial, the Janesville Press Gazettewrote that according to a 2017 Federal Reserve Bank of Dallas study that examined states that require all employers to use E-Verify, those states had fewer illegal immigrants living and working there after E-Verify requirements took effect. The editorial urged President Trump to start “touting” it, an especially valuable goal since E-Verify precipitated steep declines in the illegal work force in Alabama, Arizona and Mississippi. Disappointingly, however, President Trump rarely mentions E-Verify.

Returning to the immigration courts, the ABA wrote that the best way to restore order is to transfer adjudications away from the politically charged Executive Branch and relocate them under a newly created Article 1 court in the Judicial Branch where federal court judges would hear them. Great, but hardly a new idea. Nearly four decades ago, the U.S. Select Commission on Immigration and Refugee Policy came to the same conclusion which was then endorsed by former House Judiciary counsel in his Notre Dame Law School Review. By anyone’s definition, 40 years of inaction on changes that would speed up the badly bogged down immigration court process is discouraging and frustrating.

Recent Gallup polling found that illegal immigration is the top concern of likely voters. Nonetheless, Congress marches to its own drummer, and ignores Americans’ wishes to end the flow which has been constant since the mid-1980s.

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