Part 2: New solutions to fix the federal immigration system

(The Sentinel) — In Part 1 of this series, retired federal immigration Judge Elliot M. Kaplan explained why, in his view, the federal system is broken. This second installment explores his proposed solutions.

In an exclusive interview with The Sentinel, Judge Kaplan said that while there’s no easy solution to the crisis at the southern border, several things could be done to improve the system that processes people who illegally enter the country.

former immigration Judge Elliott Kaplan
Former Immigration Judge Elliott Kaplan

According to Kaplan, one of the chief issues is the snarl of the immigration court system — an “administrative court” under the Department of Justice, making it part of the executive branch — rather than under the judicial branch like other federal courts. This situation adds additional complexity when decisions are routinely appealed.

When an immigration judge issues a ruling, it is first appealed to the Bureau of Immigration Appeals – which is the immigration appeals court and then moved on to the federal Court of Appeals.

“It’s stupid because immigration is a federal issue,” he said. “So that is one of the reasons I suggested that they bring the immigration courts (under the judiciary.) We already have an appellate court.”

Kaplan suggests that the existing immigration and Bureau of Immigration Appeals courts be integrated, going from immigration to BIA and then to the Supreme Court, rather than adding the federal court of appeals to the mix and eliminating an extra level of complexity.

Immigration law varies by jurisdiction

Moreover, immigration law tends to vary by federal jurisdiction, and Kaplan suggests that Congress address the issue. Kaplan said reforming asylum laws through legislation and making them a national system responsive to issues facing America and the world today is long overdue and badly needed.

“Among the glaring issues in the law is also that the qualification for asylum was either poorly drafted or has evolved into a system of ridiculous results,” he said.

Immigration judges hearing an application for asylum have three choices.

  1. They can grant asylum to an applicant, allowing them to remain in the United States, work legally, pursue citizenship, and eventually sponsor their families to immigrate legally.
  2. Grant withholding and allow immigrants to remain in the United States and work legally until the situation in their country of origin changes sufficiently for the State Department to determine that they should be returned to it.
  3. Deny their application, ordering them returned to their country of origin subject to appeal.

Kaplan says there is a fundamental problem with how the law operates.

Asylum applicants must prove a “reasonable possibility or a well-founded fear of future persecution on account of race, nationality, particular social group or political opinion by the government of their country of citizenship, otherwise known as a ten percent chance of persecution.”

A reasonable possibility is a ten percent chance. If asylum cannot be granted, then withholding can be done if there is a fifty percent probability. Therefore, the laws are drawn to encourage asylum grants but to discourage withholding.

Congress already has a system on the books, but the administration ignores it, except in special situations.

Temporary protection status ignores “failed states”

Temporary Protection Status (“TPS”) operates like withholding.  It does not provide a path to citizenship, but it does allow immigrants to lawfully work, pay taxes, and educate their children until the Department of State determines that a “lawful system of government has returned to their home country.”

According to Kaplan, the problem is that many of the asylum seekers’ home countries are failed states in which the persecution is not from the government but as likely from criminal gangs or cartels, and for which no “lawful system of government” is likely to emerge any time soon.

“The immigration laws were written to react to the Nazis killing Jews, and Catholics and homosexuals,” he said. “They’re also meant for states doing these things to people. Today, it’s not states; the states don’t exist down there. It’s gangs.”

Additionally, because the immigration courts are “administrative” under the Executive branch, judges are not appointed with the “advice and consent” of the United States Senate but are hired by DOJ.

In a somewhat unprecedented move, Kaplan said Attorney General Merrick Garland fired approximately 20 immigration judges appointed by former President Donald Trump. In past administrations, he said, judges were traditionally provisionally hired for one to two years and then “converted” to lifetime appointments. In most years, all judges were converted to lifetime appointments.

By moving the immigration courts under the judicial branch, politics could largely be removed from the issue. However, one of the most significant issues is a complete lack of transparency.

Where federal court decisions are open to the public, according to Kaplan, the immigration court decisions are sealed.

Kaplan said Congress should consider allowing all Immigration proceedings to be available to the public by making the hearing videos available.

He also suggested ending “birthright” citizenship, wherein children born of illegal immigrants are automatically granted U.S. citizenship.

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