Too Much Due Process/Too Few Judges Throughout the Immigration System

This article was last updated on May 25, 2022

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The uproar created by the flood of illegals from Central America at the Texas border perhaps can focus our attention on a long-neglected underlying problem – we have too much due process in the immigration system and too few judges (and supporting staff) to handle it.

I am not for eliminating due process in the immigration business, far from it, but there is too much of it generally, and that is accompanied by an unwillingness by the administration to fund the due process it seems to want.

If you are going to give every illegal entrant a court trial, and maybe even provide each illegal with a lawyer and some time before a trained judge – you should be ready to fund that process, as well as the detention camps where you keep the illegals. Obviously, the administration prefers to let the illegals run loose — or even finance their bus trips to the interior – rather than face up to the inherent conflict between too much process and not enough processors.

My point, however, is that this is not a one-time problem. The entire immigration system is shot through with too much process, too many proceedings, and too few decision-makers. Rarely does this reality come to the public’s attention and, as a result, we might think about the surge of Central Americans as a blessing in disguise.

We all know about the inadequate holding facilities at the border, the terribly over-burdened dockets of the immigration judges, and the de facto release of the illegals into the interior.

Let me, for a moment, paint a contrasting portrait of how a middle-sized urban community, my hometown of Arlington, Va., (population 221,000) handles a somewhat comparable legal challenge:

What do you do with the continuing, but highly variable flow, of arrests of wrong-doers throughout the day and night, the weekdays and the weekends? You know, the run-of-the-mill drunks, burglars, and other disturbers of the peace, plus some violent ones?

One possibility is that you let them loose and tell them to come to court on a stated day; that is what the Border Patrol is doing with the Central Americans. But you may lose many of them with that approach.

Another possibility is to stack them up in jail until Monday morning when a judge, working 9-5 hours, could handle them, but you would need a lot of jail space and some of those picked up do not really need to be jailed. Some variation of this system is the norm in many American communities.

Arlington County has adopted a third track (and perhaps many other cities have done so as well – this is not my field). This approach requires foresight, will, and the expenditure of public funds.

Arlington has a magistrate on duty 24 hours a day, seven days a week.

The magistrate handles the arrested as they are brought before him and simply decides if they can be allowed to leave the police station on their own, must be held for a hearing before a District Court judge (who sits in a more formal court that works traditional hours), or treated in some other way. I suspect that there is a lot of paid downtime in this job.

The magistrates (and I am getting this second-hand, I know none of them) are not lawyers and are expected to make good, common-sense decisions about holding or not holding those who have been arrested. They are thus less expensive than immigration judges or other legally trained administrative law judges, and can – apparently – be worked around the clock.

And the system works so well that I have never seen a word written about it, or have heard it discussed in public, and I have lived here for over 30 years and have held an appointed position with the county.

My point is that if you want to want to handle a “jail/no jail” situation, and you want to do it promptly, you must pay for it. And you should settle, for at least part of the system, for something less than full-fledged judges in flowing robes.

In the immigration context that means giving authority, in a specific set of situations, to send someone back to their home in another country to an administrative official, a decision-maker like Arlington’s magistrates. America has done this for years at the border, but the administration seems to have forgotten how to do it, or does not want to know how.

The problem of too much due process is, of course, not confined to the new offenders. One of the more depressing bits of my job is to read the immigration cases that come to our circuit courts of appeals — the level of courts just below Supreme Court. About half a dozen such cases are reported each week in Interpreter Releases, the immigration bar’s newsletter, and all seem to have been years in the making.

For example, Interpreter Releases, in its June 30 edition (which is not available online) tells of Jose Aguilera-Rios, a native of Mexico, who came to the United Strates as an illegal at the age of five and who subsequently obtained legal status in 2000, was convicted of a California firearms violation in 2002, and was deported for that in 2005. Six years later he was charged with attempted entry after deportation and by this year, 2014, he was before the Ninth Circuit on appeal which he won on the grounds – I am condensing drastically here – that his original conviction did not appropriately lead to his 2005 deportation. So here is a one-time illegal alien and firearms violator engaged in a 12-year-long process, which (as often is the case) the alien wins.

In another report, in the same issue of Interpreter Releases, we have the story of an Irish citizen who had a couple of marijuana convictions in his homeland, came to the United States under the visa waiver program in 2008, dropped into illegal status, married a U.S. citizen, and then drew the attention of DHS by seeking to use the marriage to obtain legal status and was ordered deported because of the prior drug convictions. This was a six-year process. (I think the courts got the basics wrong; here are two illegal aliens, one with an old firearms conviction and one with two old drug decisions, if we had to keep either of them, I would prefer the pot smoker to the firearms violator.)

Both of these cases, and many, many others like them, are examples of lots and lots of due process, and inadequate court facilities for rapid decisions.

So the problem of this huge imbalance is not only at the border, but that’s where it is the most dramatic.

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