Calling it “anarchy,” former Federal Immigration Judge Elliot Kaplan said, in an exclusive interview with The Sentinel, that the federal immigration system is far more broken than many realize.
“Many of the judges in many states and across the country are not enforcing the law. They’ve just kind of given up — or just want a paycheck — I don’t know which.”
Kaplan, who spent many years in the business world and has written for outlets such as RealClearPolitics.com and BigGovernment.com, was Unit Chief Immigration Judge in the U.S. Department of Justice, Executive Office for Immigration Review. Kaplan heard asylum, withholding of removal cases, and many other immigration cases. He wrote and issued decisions in hundreds of matters.
The immigration system, Kaplan notes, is how cases are processed once people are in the country rather than policies about people coming into the country.
According to Kaplan, the failure of the immigration system did not begin in the last few years with the record number of illegal immigrants crossing the border — and the accompanying record number of asylum cases. He says immigration laws have been neglected since 1951 when adopted at the United Nations Refugee Convention in the aftermath of World War II and the Holocaust.
Kaplan said that in 2007, the failure of the immigration system became apparent. Reform was attempted under the leadership of President George W. Bush and passed the U.S. House of Representatives. However, the legislation was dealt a fatal blow when two Democratic senators, Harry Reid and Barack Obama, voted against it.
According to Kaplan, the system further eroded when then-President Obama loosely enforced immigration laws and encouraged illegal immigration while, at the same time, building “cages” (in reality, chain-link enclosures) to temporarily hold children separated from their parents.
While former President Trump succeeded temporarily in at least somewhat stemming the tide, the border has been more porous than ever under Joe Biden’s presidency.
Currently, there are somewhere between 10 million and 17 million illegal immigrants in the United States. According to Traditional Access Records Clearing House (TRAC), in December 2022, there were approximately 1,565,966 identified immigrants, of which 787,882 were waiting for hearings before Immigration Courts, and 778,084 were waiting for hearings before the United States Citizenship and Immigration Services (USCIS). Those numbers do not include the over 9.4 million arrests at the border in 2022 alone — the last year for which complete records are available.
Moreover, among those millions are thousands of incarcerated convicted drug users and transporters, sex traffickers, murderers, and other criminals who continue to file appeals.
As of June 2 of this year, more than 1.1 million immigration cases are waiting to be heard.
Kaplan says the problem is the system and not the immigration judges
Kaplan said every judge he worked with during his time on the court was a professional.
“I can tell you that all the judges, every single one, even the liberal ones on the court that I sat, were all outstanding,” he said. “They listened. They did the best they could under the circumstances.”
Kaplan says many were frustrated because they could write all the orders they wanted, but the Department of Homeland Security often failed to enforce them.
“A lot of judges expressed that frustration,” he said. “But they still worked long hours doing the right thing.”
Kaplan also took issue with the administration’s claim that it is “adjudicating more immigration cases than ever.” He said that would imply that asylum seekers are actually seeing a judge and having their cases decided. However, he said, that simply isn’t the case. Immigration judges are allowed to hear a maximum of three cases a day.
“We were required to do three hearings a day,” he said. “And you can’t do more than three hearings a day. The problem was not the stuff coming in. The problem was the DOJ. They’re not adjudicating the cases. They’re just giving the people their walking papers and they’re not having hearings.”
Kaplan said it was not unusual for a DHS lawyer to come into his court to argue an asylum case with a file they’d gotten perhaps 15 minutes prior.
“I can’t make a decision,” he said. “My only decision is going to be for the (asylum seeker) because DHS doesn’t put on any evidence, and it’s not their failure. It’s because the system is overwhelmed.”
System failures also can prevent legitimate requests from being approved. In one case, a Navy veteran with a valid B1 visa was designated “removable” despite still being in the U.S. Navy at the time. Kaplan said that after roughly three years, the DHS simply had no evidence as to why a Naval NCO who had served with distinction in a war zone should be removed.
“She served honorably on active duty for eight years with no disciplinary actions, and she was praised by her commanding officer,” Kaplan said. “Here’s a serving Navy (member) who served in time of war, which is a special category, and DHS is trying to get them out of the country — and there’s no record of any of the actions that they’re claiming they took.”
Kaplan said he, of course, granted asylum.
Moreover, Kaplan said lawyers will often overwhelm the court with unnecessary paperwork with impunity because the immigration courts are not a part of the federal court system but rather an administrative court under the DOJ. Because they are administrative — rather than federal judges — immigration judges have no recourse for “sanctions” (otherwise known as “contempt proceedings) to help keep cases on track.
In one case, Kaplan said, a lawyer presented the court with 4,000 pages of “evidence” that he had to read, and none were ever cited in court. Kaplan said that should have earned the attorney “sanctions.”
Additionally, even illegal aliens currently incarcerated for state or federal crimes such as murder or drug dealing are entitled to an asylum hearing rather than simply being deported.
Kaplan said he didn’t have all the answers but had several suggestions for improving how the immigration courts work and to help alleviate the backlog. The Sentinel will explore those suggestions in Part 2 of this series.