Senator Ted Cruz appeared this week on The O’Reilly Factor stating that if elected President he would deport all of the estimated 12 million undocumented immigrants in the United States. What he failed to mention is that given our current immigration court resources, it would be a procedural impossibility for any President to deport 12 million people in the next four to eight years.
Syracuse University’s Transactional Access Records Clearinghouse (TRAC) has analyzed the most recent immigration court statistics and has found that as of the end of January 2016, it takes on average almost two years (667 days) for a deportation case to go from inception to conclusion. These case completion times are at an all-time high and are trending upward, as it now takes 3.7 percent longer to complete a case than it did in September 2015, and 17.6 percent longer than it did in September 2014. And that’s just the national average. In practice it can take much, much longer.
The dramatic increase in average case completion times is directly attributable to a number of factors, but none so glaring as President Obama’s aggressive immigration enforcement policies that have resulted in record deportations. Since taking office, Mr. Obama has deported over 2.5 million immigrants, and according to statistics, will vacate the White House with the dubious distinction of having deported more people than every President from the entire 20th century combined. As a direct result of the Obama deportation doctrine, our immigration courts are now facing record backlogs. As of January 2016, there are currently 474,025 deportations pending before the immigration courts nationwide. Comparably, at the end of George W. Bush’s second term there were 186,101 cases pending, and when Bill Clinton left office there were 125,734 deportations in the queue.
The second factor is that our courts are currently facing an immigration judge shortage, and are on the verge of a crisis as approximately half of judges nationwide became eligible for retirement in 2014. Replacing retiring judges takes time because each new judge requires extensive background checks and training before being able to take the bench. The process to fully staff our immigration courts to get them running at full steam could take a couple of years while the backlog continues to grow.
The third factor is that the immigration law is considered one of (if not the most complicated) areas of practice. The deportation process is long and complicated. Before an immigrant can be deported, they are entitled to due process, which affords individuals the right to apply for relief from removal when eligible. A single contested deportation case generally requires multiple hearings, call-up dates for submission of applications, continuances to allow for processing of applications and oftentimes multiple days of trial spanning the course of years.
If an immigrant loses their deportation case, they may appeal the ruling to an administrative appeals court called the Board of Immigration Appeals (BIA). If the immigrant loses their appeal at the BIA, they may appeal to the Federal Circuit Court that has jurisdiction over the geographic location where their original hearing was conducted. In sum, a deportation order does not become final for immigration purposes until all appeals have been exhausted, and the immigrant is permitted to remain in the country during the entire process. Once a deportation order becomes final, only then may an immigrant be removed from the United States. To do this, our government must first obtain permission from the country of origin to effectuate the removal, which permission is not always quick and easy to obtain.
But back to Ted Cruz, who by all accounts is a respected and experienced constitutional lawyer. It is entirely possible, if not likely, that Senator Cruz has no experience navigating the murky waters of U.S. immigration law, let alone the procedural aspects of a deportation case. As such, I am willing to give him the benefit of the doubt with respect to his immigration ambitions, as misinformed as they may be. With that said, Senator Cruz’s promise to effectuate the mass deportation of 12 million people in the next decade is little more than fool’s gold, and in addition to being intellectually dishonest, is the fastest way for him to make history as the first native-born Canadian of Cuban descent to alienate the Latino electorate, and with it any legitimate chance at winning the White House.
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Matthew Kolken is an immigration lawyer and the managing partner of Kolken & Kolken, located in Buffalo, New York. His legal opinions and analysis are regularly solicited by various news sources, including MSNBC, CNN, Fox News, The Washington Post, Forbes Magazine, and The Los Angeles Times, among others. You can follow him @mkolken.
