Donald Trump can fix immigration

OPINION:

Donald Trump’s presidency began, as did his candidacy, with promises to fix the failing institutions of federal governance. Immigration was one of them. Recent issuance of his revised travel restrictions on terror-linked countries assures that he can be taken at his word. No better place for him to continue this effort is America’s immigration courts. Scandal defines them.

U.S. immigration courts have the highest failure to appear rate (FTA) of any state or federal courts in the country. Over the past 20 years, 37 percent of all aliens free pending their trials — 918,098 out of 2,498,375 — never showed for court. These federal courtrooms have become as porous as stretches along the Southwest Border that provide much of their caseloads. On average, 46,000 people each year vanished from tribunals created exclusively for the foreign-born.

In the five years following Sept. 11, 2001, failures to appear exploded. Fifty percent of those free before trial — 360,199 out of 713,974 — simply disappeared. In 2005 and 2006, 59 percent of those released on their own recognizance — 215,000 people altogether — vanished. Absurdly, court executives reported to Congress that only 39 percent failed to appear. Rather than admit that three-fifths of those summoned to court absconded from their hearings, court executives lowered the rate by gaming the numbers.

To reach the lower FTA rate, court executives added aliens detained pending trial — people who can’t miss court — to the denominator of those free pending trial and, in turn, artificially reduced the percentage of those who evaded court. Enlarging the denominator by including those in custody, shrank the numerator of those who skipped court and, in turn, drove down the FTA rate. This is the way the courts have reported these dynamics and concealed this failure for the last 20 years.

Since 1996, 1.2 million aliens free before trial were ordered removed. Only one-quarter of this group — some 302,000 — attended their trials. A trial court is three times more likely to issue a removal order for dodging court than issue a removal from a case that was actually tried. Nearly a million people who fled court compose the largest part of unexecuted deportation orders. Nor is this flight without risk.

Among those who absconded were 3095 people from nations the State Department says aid and abet terrorism. Prominent in this group were Iranians, Sudanese, and Syrians — applicants whose countries the U.S. designates as state sponsors of terrorism. Not only does this evasion potentially imperil national security, but more predictably, it disables enforcement. Study after government study documents this disarray.

“Aliens have nothing to lose by failing to appear for hearings and ignoring the deportation process” stated the Government Accountability Office in 1989. Few, it found, were ever deported. A 1996 Justice Department (DOJ) report similarly concluded that 89 percent of aliens ordered removed remained at-large years after their deportation orders were final. Another DOJ report in 2003 echoed these findings. Only 35 percent of criminal aliens and a bare 6 percent of failed asylum applicants from terror-linked countries were removed from U.S. soil.

A 2006 Department of Homeland Security review is perhaps the most troubling. Determining that 85 percent of asylum applicants from terror-linked countries would, like other migrants, disappear when released, it also determined that, like other migrants, few would ever be found. A surging Southwest border — spurred by the frail Obama policies that caused it — offers more of the same to come. Unexecuted deportation orders, which now stand at 954,000, will soar past a million in the wake of Mr. Obama’s initiatives that disabled enforcement and diminished rule of law.

These disorders can neither dim the positive impact immigration plays in our national life nor heighten the dysfunction that demands fixes. They simply show how far we have fallen in our failure to justify the many who play by the rules by refusing to sanction those who do not and, in doing so, foster more of the same problems that got us where we are today.

For President Trump and a Republican Congress, their majorities offer an unparalleled opportunity to repair a system whose unaccountable failures contributed to a victory that a watchful public will retract, if well-meaning efforts dissolve into zealous overreach or meaningless compromise. Fixing immigration doesn’t necessarily mean passing new laws. It means enforcing laws already on the books that strengthen borders, redeem the persecuted, and remove offenders. Those are all good places to start.

America accepts more legal immigrants to its shores each year than all nations of the world combined. Dignifying it with courts that work is a good place to finish.

• Mark H. Metcalf, formerly a judge on the Miami Immigration Court, served in posts at the Justice and Defense Departments under George W. Bush. He is a Kentucky prosecutor and a veteran of Iraq.