Fixing Immigration Court

Apparently USA Today was jealous of the AP's big piece on immigration detention from a few weeks ago, because they did their own investigation into another blown-out tire on our nation's totalled immigration system: the backlog in immigration court (via). They found that 90,000 people since 2003 have waited two or more years to have their case decided by an immigration judge, and 14,000 have waited five or more (no indication of how long people are waiting between the final order of deportation and actually setting foot in their home country). The story doesn't break down how many of those people were detained, but I presume it's a very substantial amount. The detention angle raises the problems with immigration court from ordinary bureaucratic abuse to serious injustice.

There are a variety of things that would ease this problem:

1) More resources for the immigration court system. This is the obvious one, mentioned in the USA Today article. With more judges and clerks, they could get people on the docket quicker and get their cases underway.

2) Changing the focus of enforcement. The immigration court system is full of people. But a lot of those people are low-level offenders -- green-card holders who got caught with a bong, people who gave their life savings to a coyote to get smuggled in and given a forged social security card, kids whose parents brought them in as babies but forgot to adjust their refugee status. Prosecuting these people -- the Sheriff Joe strategy -- is not getting the most bang for your buck. There have been some encouraging noises from the Department of Homeland Security that they're going to start focusing on going after the employers and the smugglers -- the big players -- though we'll see what that ends up meaning in practice.

3) Reduce the amount of deportable offenses. If there's a problem with too many people who are in the country illegally, there are two ways to fix that -- get them out of the country, or give them an option to be here legally. I realize the second option isn't politically feasible, but it would certainly help. I have some admittedly radical ideas on what the system should end up looking like, but you don't have to go that far to get some mileage out of this idea. You could take a big chunk out of the backlog by declaring that you can't get kicked out of the country for smoking pot anymore. You could take another chunk by improving access to legal status -- more visas, lower fees, etc. Streamline the whole process of getting and keeping status, and you'll have fewer people getting caught up in technical violations (as well as ultimately a lower workload for the government).

4) Public defenders for immigration court. Anyone in the U.S. charged with a crime -- citizen, legal immigrant, or even totally undocumented -- is eligible for a public defender if they can't afford a lawyer. But since immigration is classified as civil law*, there are no PDs. That means a huge proportion of immigrants are unrepresented, while a bunch more are represented by scammers and incompetents**. This is a problem for the immigrants, obviously. But it's also a problem for the efficiency of the system. A good lawyer can help an immigrant understand which forms of relief are likely to work, and which ones would be a waste of time to pursue. A good lawyer can help the immigrant understand the court process -- when things need to happen, how to file certain things, etc. A good lawyer can keep ICE on its toes to keep the process moving. It's distressing that none of the serious immigration reform bills that have come up recently have included a PD program.

5) Reduce the use of detention. As I argued earlier, detention is a horrible thing and should be avoided if possible -- and it usually is possible. It's a lot easier to wait two years for your case to be resolved if you're out and about than rotting in a jail cell (easier for the immigrant's mental and physical health, and easier for the taxpayers' pocketbooks).


*IANAL, but as far as I can tell the criteria by which we decide whether an area of law is civil or criminal is on the basis of whether the government has decreed that it's civil or criminal.

**Immigrants facing deportation and their families are understandably desperate, and understandably ignorant about the intricacies of the second-most-complex area of U.S. law (after tax law). And if you get deported, it's tough to hold your lawyer accountable. So they're easy prey for people who make up hopeful stories about their chances and charge big bucks for pretending to fight their case.

Doing, allowing, and intrusion

Fiona Woollard takes a stab at justifying the greater moral significance of doing something than allowing the same thing. The doing-allowing distinction is an extremely deeply grounded intuition (at least for people in Western cultures), but one that has proven quite difficult to give a clear justification for (or even a clear way to distinguish which things are truly do's and which are allows). Unfortunately, I think Woollard's argument ends up begging the question*.

Woollard's argument begins from the Lockean/libertarian idea that society consists of individuals each walking around with a "private sphere" that belongs to them (consisting, at minimum, of their own body and its abilities)**. From the claim that it's wrong, all else being equal, to intrude on someone's private sphere, she derives a justification for the do-allow distinction. To do something -- say, pushing a boulder down a hill onto someone -- intrudes on their private sphere, which is bad. But holding someone responsible for allowing an equivalent harm that they could have prevented -- say, they could have pushed a junky old car in front of a naturally-falling boulder to save the would-be victim's life -- intrudes on the allower's private sphere. It makes the allower's property subject to being commandeered by society to help others.

The first problem I see here is that the injunction against doing harm intrudes on the do-er's private sphere too. It limits what you can do with your property, and opens you to claims on your property to either forestall harmful things you have set in motion or make recompense afterward. So why should the imposition involved in condemning doing be less worrisome than the imposition involved in condeming allowing? It can't be because there's a greater total amount of imposition involved -- the balance is simply shifted to imposition via moral responsibility rather than imposition via effects of bad things that are done or allowed. I.e., relatively more loss of property to boulder-blocking and less from getting squashed by boulders in a do-allow-neutral system than in Woollard's proposal. As far as I can tell, the only justification can be that doing is morally worse than allowing, thus sanctioning more interference to put it right -- but that's exactly what Woollard hoped to prove.

Another angle that presents a problem is the perspective of the third-party observer who can't interfere in the bad events, but can assign responsibility and blame (and possibly punishment) to the participants. It is this third party who is potentially imposing on the allower by demanding that they stop allowing. But that observer is also allowing the victim to be imposed on by the bad event if they accept Woollard's advice. That is, the idea that it's better for the victim to get squished than for the bystander to have to put forth the effort to stop the boulder rests on the idea that the third-party judge is bound by the do-allow distinction (allow the squishing versus do the demand to intervene) -- but again, that distinction is precisely what the argument is meant to justify.

*In the original sense of "assuming what it sets out to prove," rather than the modern sense of "raising a question."

**I'll accept this conception for the sake of argument, though I think it has significant flaws.