Immigrants Fill Courtrooms Amid Vacuum of Justice

By Michelle Chen Feb 16, 2010

The American Bar Association’s 510-page report on the need to overhaul immigration courts was not just an academic exercise. Several new analyses examine the crisis engulfing the courts, as well as the entire law enforcement racket that lawmakers have constructed around the politics of immigration. The Transactional Records Access Clearinghouse (TRAC). recently crunched federal numbers and uncovered some notable, ambiguous trends. In fiscal year 2009, immigration prosecutions grew by about 16 percent. That marks a 42 percent increase over the previous five years, and a staggering 150 percent increase over the past 20 years. The pattern was fueled by Bush administration policies, but the tail-end coincides with Obama’s much-hyped focus on "criminal aliens," and on employers who use undocumented labor. So far, those crooked bosses have proven elusive, though. TRAC reports, "of these 91,899 immigration prosecutions, only thirteen employers in eight cases were prosecuted for the felony offense of illegal hiring of undocumented workers." While the government would have you think that crackdowns on "criminal aliens" are making our streets safer, take a closer look at what constitutes a crime in the system:

Just two lead charges accounted for more than nine out of ten immigration prosecutions (92 percent): illegal entry of an alien and illegal re-entry of an alien under Title 8, Section 1325 and Section 1326, respectively, of the United States Code. Another 3 percent were accounted for fraud in the use of visas, permits, and other forms of IDs. … An additional 36 individuals in 24 cases were charged with a petty offense… for recruiting, referring for a fee, or employing an alien knowing the alien is unauthorized for such employment.

If the feds are casting that wide a net, you might wonder whether it robs time and resources from other priorities, like, say, investigating criminals with a different color collar. Justice Department data shows there were only 82 corporate fraud cases during the same time period–roughly one quarter of the number of prosecutions in 2002. (Given the current discussions in Congress, you can judge for yourself the paltry number reflects a 75 percent reduction in corporate malfeasance or seven years of coddling Wall Street). Perhaps even more alarming is the potential impact on community safety. Researchers at UC-Berkeley Law School’s Warren Institute report that Operation Streamline–a Bush-era program that automatically pushes people caught at the border into federal prosecution and imprisonment–has led to a flood of prosecutions in border-area courts that could deplete resources better spent on serious crimes.

Operation Streamline has generated unprecedented caseloads in eight of the eleven federal district courts along the border, straining the resources of judges, U.S. attorneys, defense attorneys, U.S. Marshals, and court personnel. The program’s voluminous prosecutions have forced many courts to cut procedural corners. Magistrate judges conduct en masse hearings, during which as many as 80 defendants plead guilty at a time, depriving migrants of due process…. By focusing court and law enforcement resources on the prosecution of first-time entrants, Operation Streamline also diverts attention away from fighting drug smuggling, human trafficking, and other crimes that create border violence.

This kind of "assembly line" justice isn’t confined to the borderlands. The public got a rare peek at the Kafka-esque bowels of immigrant justice after the Agriprocessors raid in Postville, Iowa, when federal authorities set up an insta-court to rubber stamp the deportation cases of exploited immigrant workers. More recently, the Arizona Republic reports on the crippling caseloads of clogged immigration courts.

For most immigrants… the longer their deportation cases are pending, the greater the chance something could go wrong, said Maria Jones, a Phoenix immigration lawyer and chairwoman of the Arizona Bar Association’s immigration section. Paperwork can be lost. Neighbors and friends who might help prove time in the U.S. can move away. A U.S. citizen relative needed to qualify for cancellation of removal could die, something that has happened to at least one of Jones’ clients. Immigrants can apply for work permits and driver’s licenses while their cases are pending, Jones said. But their lives are in limbo. And they also run the risk of being stopped by police again, turned over to ICE and detained.

Some immigrants, the Republic‘s Daniel Gonzales writes, may hold out hope that Congress will overhaul immigration policy before their deportation orders to go through. The irony is that the agonizing wait for humane reform will probably outlast an individual immigrant’s interminable legal nightmare. The legal advocacy network Appleseed, in its 2009 report, "Assembly Line Injustice," has described the judicial bureaucracy as a joke at best and a human rights travesty at worst:

It is well documented that the single best predictor of an immigrant’s success or failure in Immigration Court is the identity of the judge who hears the case. Moreover, countless immigrants are subjected to harassing or denigrating treatment in Immigration Court, cannot understand what they are being asked or told, or have no assistance in navigating the byzantine court process. Far too many immigrants are held in detention for so long, while their cases grind on at a glacial pace, that they ultimately decide to go back home, even if they are entitled to be here. Many immigrants face a courtroom experience that does not uphold America’s commitment to the fair and dispassionate administration of the laws.

And sometimes, the assembly line bypasses the judge’s bench altogether. Homeland Security can invoke various fast-track schemes that preempt regular judicial review. The government’s legal roulette is a better tool for political leverage than upholding the law: when deportation is inevitable and due process an afterthought, why bother with justice? Image: Jack Kurtz / The Arizona Republic