EOIR — The missing link of immigration reform
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The four-letter word of the immigration debate

Have you ever heard of the Executive Office for Immigration Review? If you're unaware of the crushing bureaucracy of the EOIR, you're not alone. In surveying recent developments in the immigration reform debate, it appears that United States Attorney General John Ashcroft, Immigration and Naturalization Service Commissioner James Ziglar, and many reform-minded columnists including Linda Bowles and Thomas Roeser have never heard of the EOIR either.

So I want to let you in on a little secret. The key piece of the puzzle in immigration reform is the four-letter word of the Department of Justice: EOIR.

The Executive Office for Immigration Review is a little-known agency within the Department of Justice that conducts administrative hearings to start an endless bureaucratic process of hearings and appeals that literally makes a federal case out of the deportation of every single illegal alien or criminal alien resident in this country. The EOIR system is synonymous with delay, delay, delay. And as every insider will tell you, "it's not over until the alien wins." According to their web site, "the Executive Office for Immigration Review was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined the Board of Immigration Appeals (BIA) with the Immigration Judge function previously performed by the Immigration and Naturalization Service (INS). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of Federal immigration laws."

What a mistake! The federal government created a separate agency to decide the cases and hold the keys to the detention cell for every single alien that the INS detains in the United States, while insuring that the each alien's immigration case is kept in perpetual bureaucratic limbo. This experience of creating a system designed for failure should serve as a warning to those embarking on reorganizing the INS again. In order to avoid another bureaucratic nightmare, the EOIR - this pruned branch of the INS, this evil twin of the most hated agency of the DOJ - must be gutted, eliminated or rendered unrecognizable with its functions streamlined or parceled out to other agencies who can do the job.

It is time for the public to know just what a bureaucratic boondoggle the EOIR represents. The EOIR's nationwide "United States Immigration Court" and its Byzantine appellate body known as the "Board of Immigration Appeals" is the little-known stumbling block to streamlining the process of removing illegal aliens and criminal alien residents from our country. The EOIR is the bureaucratic delay for which the INS is continually flogged by the press. It is the bureaucracy behind the INS bureaucracy. Combine this pointless bureaucracy delay with the prolific mismanagement and misallocation of resources that is the INS, and our nation's enemies have little to fear.

Though aliens might temporarily "lose" their cases at their first hearings with an EOIR immigration judge in Immigration Court, they can always appeal to EOIR's clandestine Board of Immigration Appeals in Falls Church, Virginia. If that doesn't work, they can go to appellate court again in the federal circuit courts. Months and years pass with every step of the process. Virtually every alien detained by the INS on immigration violations is waiting for or has already had hearings before the EOIR. The entire detention operation of the INS is geared toward serving up aliens to the bottleneck of all endless legal bottlenecks — EOIR's Immigration Court system. Given this endless hearing and appeal process, the INS cannot possibly detain every alien while waiting for the resolution of these cases. So when faced with EOIR bureaucracy, the INS turns around and releases most aliens to the streets. And while their cases grind on through the process, the aliens continue living in the United States. It is the very existence of the EOIR that is to blame for our country's failed deportation system. The current plan by United States Attorney General John Ashcroft and Immigration and Naturalization Service Commissioner James Ziglar to restructure the INS (by splitting its mission in two) leaves the entire structure of the EOIR and the immigration court system intact. This plan does not address the chronic problem of lack of detention space for the illegal aliens that the INS actually knows about. Without reforming the EOIR hearing system bureaucracy, the split-function INS reform proposal amounts to nothing more than rearranging the deck chairs on the Titanic.

Amazingly enough, no one outside of a small group of lawyers and government employees know that the EOIR exists. But when it comes to the federal government actually deporting aliens, no agency is more important. All roads lead to the EOIR. Unless aliens want to leave on their own (or through INS administrative or expedited removals), the INS cannot actually physically remove any alien until the EOIR gives the order. Reform-minded columnist Thomas Roeser is on the brink of exposing the EOIR bureaucracy. Roeser recently wrote that "[t]he Immigration and Naturalization Service has acknowledged that more than 250,000 illegal immigrants it ordered deported remain in the United States!" The problem is that the INS does not order aliens deported, the EOIR does. In Immigration Court proceedings, the INS must wait, and wait and wait many years for the EOIR system to run its course before the INS can remove the alien. Columnist Linda Bowles is also stalking the EOIR bureaucracy, though perhaps unwittingly. She is absolutely correct in stating that "[t]he United States has no operative immigration policy." While hot on the trail of the EOIR, she comes close to unmasking it, but focuses on the INS instead. "[O]f the 8 million to 10 million illegal aliens who live in the United States, between 250,000 to 300,000 of them have been brought to court and sentenced to deportation by federal judges. After their court hearings, these illegal aliens simply walked away and disappeared. The Immigration and Naturalization Service (INS) does not know where they are or what they are doing and has no plans to round them up and see that they leave the country."

Ms. Bowles has just highlighted the EOIR-caused inefficiency of the system. The "court" system she describes is EOIR's Immigration Court. But the "judges" are really bureaucrats in black robes hired by the EOIR, not nominated by the President. These "immigration judges" are hearing officers who don't "sentence" anyone. These DOJ lawyers may claim to be "federal judges" at cocktail parties, but they are definitely not "federal judges." They work for a federal executive agency within the Department of Justice. They even have their own federal government employee union. The public deserves to know who they really are and what they are doing with American tax dollars.

The EOIR's bench of Immigration Judges is a largely alien-sympathetic bunch, made up of many former activist legal aid lawyers, agenda-driven private immigration attorneys and "sleeper" liberal attorneys from within the Department of Justice. There are exceptions, but the EOIR as a group is generally pro-alien. Immigration Judges who order criminal aliens deported and have the courage to deny discretionary forms of relief in Immigration Court are a rare breed. Immigration Judges operate within the esoteric world of immigration law where most aliens find a way to prolong their stay in the United States somehow, whether legally or illegally. From the alien's perspective, the longer they remain in the EOIR system, the better. Aliens "win" just by being in it.

Even if every foreign terrorist and their fellow alien conspirators were rounded up tomorrow, under the current deportation system, they would all be set up for hearings before EOIR Immigration Judges. The process could last years. And if detained, the Immigration Judge would have the opportunity to lower or eliminate the immigration bond that was set by the INS to hold the aliens in custody. Unfortunately, most bond reductions are granted as a matter of routine. If things somehow turn sour in court for the aliens, and if not detained, they can always disappear without a trace, never to be heard from again. Just as there is no mechanism in place for tracking and rounding up non-immigrant visa over-stayers, the INS has no practical way to find aliens after release on parole or immigration bond. Remember, the aliens in Immigration Court proceedings have already been arrested. They're the ones that the INS actually knows about; yet they are released from detention anyhow. The federal government receives $1,500 or $5,000 or $7,500 (for example) of immigration bond money for each alien released through this revolving door; yet the costs to our nation are enormous.

As long as the EOIR is around, there will be no immigration reform in the United States. If the EOIR remains intact, throwing money at the U.S. Border Patrol or splitting the INS into a million pieces will do nothing to streamline the removal of foreign nationals who have violated our immigration laws. To cut the bureaucratic red tape out of the deportation process and streamline our labyrinth of immigration law, the EOIR's Board of Immigration Appeals and Immigration Courts need to be disbanded. No matter what becomes of the INS, no reform of America's immigration system will be complete until Congress does one more thing: abolish the EOIR.

Juan Mann is the proprietor of the only immigration reform web site that exposes the bureaucracy of the EOIR. He dedicates his work to the principle that one man's opinion can make a difference.

December 21, 2001

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