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Thank Congress for our massive immigration court backlog
Joe Guzzardi.jpg

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. 

The American Bar Association concluded in a new report the nation’s immigration courts are irreversibly dysfunctional and on the verge of collapse. As of August, the total cases pending exceeded 1 million, an increase of 200,000 cases in a single year. The 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 are 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 despite passing through previous Judiciary Committees. 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 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 Gazette wrote that according to a 2017 Federal Reserve Bank of Dallas study, states that used E-Verify had fewer illegal immigrants living and working there. 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.

Joe Guzzardi is a Progressives for Immigration Reform analyst who has written about immigration for more than 30 years. Contact him at