We all know how bad the federal government is at controlling our border, but we face the same problem in the system set up to handle immigration cases. Many people do not realize that illegal aliens who are caught end up in immigration courts that are part of the Justice Department’s Executive Office for Immigration Review. These courts are presided over by administrative judges; they are not Article III federal courts.

On Thursday, as BP’s CEO was being pummeled on Capitol Hill, the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing of its own. Mark Metcalf, a former immigration judge, was one of the witnesses, and he had some startling testimony that went completely unnoticed by the media (full disclosure: Mark and I worked together at the JusticeDepartment).

Mark Metcalf’s research on the deceptive statistics released by the Justice Department is quite shocking. From 1996 to 2008, the U.S. allowed 1.8 million aliens (many of them here illegally) to remain free upon their promise to appear in court when their cases were scheduled to be heard, and 736,000 of them never showed up for their hearings. After 9/11, court evasion by illegal aliens exploded — from 2002 to 2006, over 50 percent of all aliens summoned to court disappeared.

Of course, you’d never know this from the numbers reported by the EOIR, because it masks the true numbers by manipulating its statistics. For example, in 2005 and 2006 EOIR reported to Congress that the “overall failure” rate of aliens “to appear” in court was only 39 percent. The real number of aliens who were free pending their court date who then failed to appear was actually 59 percent. EOIR got the deceptively lower 39 percent figure by combining the appearance rates for aliens who were free pending a hearing and aliens who were actually in jail! That is ridiculous and clearly does not give a true picture of the problem, since someone sitting in jail is not capable of skipping out on his court hearing, at least not without committing the further crime of breaking out of jail. But combining those groups makes the skip rate look lower than it really is.

Only 9 percent of aliens who lose their cases actually bother to appeal; most of them just walk away and disappear.  Those dodging deportation orders issued by immigration judges number in the hundreds of thousands. In 2002, there were 602,000 backlogged deportation orders; in 2008, 558,000 remained unenforced. (Of those ordered deported, 45,000 were illegal aliens from countries that, according to DHS, abet terror.) The highest arrest rate for aliens ordered deported was achieved in 2008 when 6.1 percent were apprehended.

One of the biggest reasons for this is not just the lack of resources given to our immigration enforcement agencies, but the fact that because the immigration judges are just administrative judges and employees of the JusticeDepartment , they have no ability to enforce their orders. So enforcement of all of these deportation orders is left up to the whims of the political appointees who run DHS and set the priorities of the Immigration and Customs Enforcement agency, and whose lackadaisical attitude is one of the reasons that Arizona felt compelled to act on its own. 

In August 2009, ICE announced it would not remove aliens who skipped court or disobeyed orders to leave the U.S., which gives even more incentives to illegal aliens to treat both our laws and our courts with contempt. So, as Mark pointedly says, “noncitizens who disobey immigration court orders are treated remarkably better than their citizen” counterparts in state and federal courts who are subject to arrest, contempt and incarceration for disobeying court orders.

I can’t think of any word more appropriate to describe this situation than appalling. And no one in this administration seems to have any interest in doing anything to fix this broken system other than to relax all enforcement of our immigration laws and just open up the borders. Oh, yes, and sue Arizona for trying to enforce the law.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.