EOIR litigation bureaucracy is the problem, not the solution
August 01, 2002, 05:00 AM
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Now that the public outcry against the Immigration and Naturalization Service has risen to a fever pitch in our post-September 11th world, I would like to let you in on a little secret. There have been many great suggestions for immigration reform published recently, including those on VDARE.com, FAIRUS.org, AmericanPatrol.org and by Congressman Tom Tancredo and the House Immigration Reform Caucus. But they have all overlooked a key piece of the puzzle in immigration reform, the four-letter word of the Department of Justice — EOIR — the Executive Office for Immigratin Review.

There is hope though. It looks like the Attorney General has the EOIR's number. On February 6, 2002, a much-needed plan by the Bush administration to scale back the EOIR and reform its inefficient appellate body, the Board of Immigration Appeals (BIA), brought the EOIR's momentum of bureaucratic expansion to a crashing halt. Read more about the Bush administration plan.

According to their web official site, "the Executive Office for Immigration Review was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined the Board of Immigration Appeals (BIA) with the Immigration Judge function previously performed by the Immigration and Naturalization Service (INS). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of federal immigration laws."

What a mistake that was - creating a separate agency to hold the keys to the jail for every single alien that the INS detains in the United States, while insuring that the aliens' immigration cases are kept in perpetual bureaucratic limbo. This experience should serve as a warning to those embarking on reorganizing the INS again. In order to avoid another bureaucratic nightmare, the EOIR - this pruned branch of the INS, this evil twin of the most hated agency of the DOJ - must be gutted, eliminated or rendered unrecognizable with its functions streamlined or parceled out to other agencies who can do the job.

While the INS is treated as the most hated agency in the Department of Justice, with routine beatings in Congress and in the media, its fellow DOJ agency, the EOIR hides in the shadows. No one outside of a small group of lawyers and bureaucrats even knows it exists. But when it comes to the federal government actually deporting aliens, no agency is more important - all roads lead to the EOIR. Unless aliens want to leave on their own, no one gets deported until the EOIR says it's O.K!

Every alien being detained on immigration violations by the INS is waiting for (or has already had) a hearing before an Immigration Judge of the EOIR. The entire detention operation of the INS is geared toward serving up aliens to the bottleneck of all endless legal bottlenecks known as the Immigration Court system. Given this endless hearing and appeal process, the INS cannot possibly detain every illegal alien indefinitely while waiting for a resolution of these cases. So when faced with EOIR bureaucracy, the INS turns around and releases most aliens to the streets. While their cases grind on interminably in Immigration Court, the aliens continue living in the United States.

Unless an alien wants to leave the U.S. voluntarily (after being arrested by the INS or U.S. Border Patrol), every alien in the United States must enter EOIR's system and go before an Immigration Judge. Fortunately for the aliens, the EOIR's bench of Immigration Judges consists largely of former activist legal aid lawyers, agenda-driven private immigration attorneys and "sleeper" liberal attorneys from within the Department of Justice. The bottom line is that the EOIR as a group is unashamedly pro-alien. So to the rare Immigration Judges who actually order criminal aliens deported, and who have the courage to deny discretionary forms of relief in Immigration Court, I salute you!

Immigration Judges operate within the esoteric world of immigration law where most aliens wind up being eligible to stay in the United States and "win" their case. From the alien's perspective, the longer they remain in the system, the better. Aliens really have little to fear in Immigration Court. The EOIR is a system where the alien wins just by being in it; and as every insider knows, "it's not over until the alien wins."

It is time for the public to know just what a bureaucratic boondoggle the EOIR represents. The EOIR's nationwide alien liars' forum called "United States Immigration Court" and its Byzantine appellate body known as the "Board of Immigration Appeals" is the little-known stumbling block to streamlining the process of removing aliens and criminal alien residents from our country. The EOIR is the bureaucratic delay for which the INS is continually flogged by the immigrants' rights groups. The EOIR is the bureaucracy behind the INS bureaucracy. Combine this crushing bureaucracy with the prolific mismanagement and misallocation of resources that is the INS, and our enemies have little to fear.

As we all now know, the 1993 and 2001 bombers of the World Trade Center are an assortment of foreign nationals who are student visa over-stayers, illegal entrants, pending political asylum applicants and parolees. But even if all of their fellow foreign conspirators were rounded up tomorrow, under the current deportation system, they all would be set up for hearings before an Immigration Judge of the EOIR. The INS would not be able to deport anyone until it receives the go-ahead from on high by the EOIR. The process could last years. And if the alien is detained, the Immigration Judge would have the opportunity to lower or eliminate the immigration bond that was set by the INS to hold the alien in custody.

Most bond reductions are granted as a matter of routine. If things somehow turn sour in court for the aliens, and they are not detained, the aliens can always disappear without a trace, never to be heard from again. Just as there is no mechanism in place for tracking and rounding up visa over-stayers, the INS has no practical way to find aliens after release on parole or immigration bond. Remember, these aliens in Immigration Court proceedings have already been arrested. They are the ones that the INS already knows about; yet they are released from detention every day. The government receives $1,500 or $5,000 or $7,500 (for example) of immigration bond money for each alien released through this revolving door; yet the actual costs to our nation are enormous. This is scandalous.

The fact of the matter is that the deportation system in the United States is voluntary. Except for the most heinous criminal aliens, anyone in proceedings before the EOIR is eligible for many perverse incentives in the Immigration and Nationality Act which reward illegal conduct. Under the right circumstances, aliens apprehended smuggling drugs who are in Immigration Court proceedings might actually wind up with a brand new "green card" when it's all over. There's also always the option of crying "political asylum," and even if you're a murderer, you could still ask for "withholding of removal" or "deferral of removal under the convention against torture."

Aliens in Immigration Court use international alien smuggling to get themselves into the system, then lie their way out of it. Good liars in political asylum hearings often are rewarded with new "green cards." Bad liars might temporarily "lose" their cases before the INS asylum office or at the trial level in Immigration Court, but they can always appeal to the even more liberal and clandestine Board of Immigration Appeals. If that doesn't work, they can go to appellate court again in the federal circuits. Months and years pass with every step of the process. Detained aliens are few and far between.

Coupled with the revolving door of "humanitarian parole" by the INS, as well as "immigration bonds" set by the INS and lowered routinely by the EOIR's Immigration Judges, most aliens are given the privilege of "fighting their case" while living happy lives in the United States. The aliens always have the ongoing option of disappearing into American society. Who really wins? With the EOIR, it's not over until the alien wins.

As long as the EOIR is around, there will be no immigration reform in the United States. Throwing money at the U.S. Border Patrol or the INS will do nothing to streamline the removal of foreign nations who have violated our immigration laws. To cut the bureaucratic red tape out of the deportation process and streamline our labyrinth of immigration law, the EOIR's Board of Immigration Appeals and Immigration Courts need to be disbanded.

No matter what becomes of the INS, no reform of America's immigration system will be complete until Congress does one more thing: abolish the EOIR.

August 01, 2002