Seeking Fair and Effective Administration of Immigration Laws

July 21, 2009

Immigration presents courts and administrative agencies with tremendous challenges. A lack of consensus and resources for total enforcement of laws governing entry to and status in the country creates selective enforcement and debates over how to deploy limited resources. Most of those caught up in enforcement efforts have no access to legal representation to help them protect their rights. Immigration courts are overloaded and produce decisions that are inconsistent from court to court and judge to judge.

This brief examines how the courts, the Justice Department and the Department of Homeland Security administer justice and enforce immigration laws. They attempt to keep as many illegal entrants out of the country as possible, reduce the availability of illegal employment and take action against some who remain here illegally.

Assessing the success of enforcement efforts is difficult because the issues are complex and emotional, and success is hard to define, much less measure. Many worry that the administration of immigration justice is unfair and inequitable, while others complain that border enforcement is weak and that too many illegal immigrants are allowed to remain in the country.

In a politically charged climate, both courts and immigration agencies face difficult tasks. If Congress provides a path to legal status for some illegal residents, as currently proposed, authorities will see new bureaucratic structures and guidelines. Providing a path to legal status will increase demands to identify and remove those not eligible for, or who wish not to pursue, that path. In addition, such undertakings require additional funds at a time when resources are scarce. The new immigration debate highlights the need to craft better policies to direct the institutions most responsible for enforcing the laws fairly.


An estimated 11 to 12 million residents in the United States are not authorized to be here. More slip into the country every year, although the number of illegal entrants has been coming down as of late. Last year, the Homeland Security Department’s Immigration and Customs Enforcement removed (formerly “deported”) about 350,000 illegal residents. Almost every person facing a final removal order, however, is entitled to contest it in the nation’s immigration courts.

These courts are not part of the federal court system, whose principal judges are appointed by the president after Senate confirmation; their life tenure and generous resources promote effective and independent decision making. The immigration courts are a unit of the nation’s chief law enforcement agency, the Department of Justice, which appoints their judges. They handled almost 300,000 matters last year, making them a key component in the nation’s efforts to enforce its immigration laws fairly and effectively. Nevertheless, they have been largely overlooked in the debate over immigration reform, which has chiefly concerned border control and worksite enforcement. By almost all accounts, the immigration courts have too much work for the resources provided them, producing inconsistent decisions and major delays.