Get the Ricochet app
Ricochet will work fine in a browser on your mobile devices, but for the best experience please download our app.
In comments discussing due process in deportation cases (see, Due Process and Immigration?), there was a lively debate about how much process is due.
In this piece on the indispensable Powerlineblog.com, we get this stunning statistic about the backlog of immigration cases:
You may have seen headlines about the amazing number of cases pending, some 3.7 million, nationwide. That works out to something north of more than 1 percent of the nation’s population is currently in official deportation proceedings. More, in that some cases involve more than a single individual.
The blog author makes this observation about the numbers in his home state of Minnesota:
Following the national trend, the backlog at the Minnesota office has dropped slightly in 2025, but still stands above 41,000 cases. I previously calculated that, at the current rate cases were being closed in Minnesota, it would take nearly 18 years to clear the accumulated local backlog, assuming no new cases were added. In other words, some cases active today would still be around on the cusp of the first Barron Trump Administration.
My home state of Maryland has reduced the local backlog from 59,000 in 2024 to 53,000 so we are merely ten years away from clearing the backlog. Take that, Minnesota.
A sobering statistic is that the 3.7 million are only those who have applied for (or were caught and required to show up for) a hearing at the DOJ’s Executive Office for Immigration Review. What process is due for the estimated 8 to 20 million additional illegals not currently awaiting process in immigration courts?
The logistics of implementing some acceptable process, made exponentially worse by the criminal malfeasance of Biden and Mayorkis, raises the issue as to whether there is a breaking point such that the American people and its government must either surrender to lawlessness or else betray fundamental commitments to due process.
By way of some historical comparisons and insights, the estimable Judge Harold Greene wrote about the experience of handling the overwhelming surge of criminal cases in the wake of the MLK riots in DC in April 1968:
Especially during periods of stress and strain on the system, let it be said that the courts continued to operate a system of justice which conforms to American standards. Let us not play into the hands of those who believe that they can overwhelm the judicial process as perhaps they may overwhelm other institutions in our public or political life. During 1967 and 1968, there were civil disorders in hundreds of major cities and smaller population centers. For the courts in all of these places to have abandoned judicial procedures for the sake of expediency would have been a major stain on our American system of justice and of law. * * * If we permit them to goad us into abandoning justice and liberty because we are exasperated, they will have won and America will have lost. We must not, and we should not, permit this to happen.
Judge Greene was writing about 6,000 arrestees in custody who needed to be arraigned in a timely fashion (one or two days, not weeks). None of the 3.7 million cases pending in the DOJ Immigration courts are in custody such that the clock would start ticking on the right to a speedy trial—as it does for any person in custody who was not a participant in J6.
Do we need a tenfold increase in immigration court facilities? Does the failure to make use of the existing process, either by remaining unreported or blowing off a hearing, establish a presumption of guilt rebuttable only by a clear and immediate demonstration of legal status at the time of arrest? Can frivolous misuse of process result in an automatic, permanent bar to re-entry? Does the USA have to provide legal counsel to 20 million illegals prior to deportation? What if the lawyers for pro-illegal immigration NGOs persuade the bulk of the other 20 million to apply for hearings followed by appellate delaying tactics and class actions for alleged procedural wrongs?
Obviously, other policy changes, such as enforcement of hiring rules, no more driver's licenses without proof of some form of legal status, etc., could result in more self-deportation. But the task of creating some faster, far more efficient process that can withstand the inevitable assault of leftist lawfare by providing sufficient notice and opportunity still needs to be accomplished.
Discussion (53)
To read this bio, please join Ricochet.
I have personal recollections of the events that Judge Greene wrote about. The entire DC Bar (including my father) was drafted to come to the courthouse represent arrestees at 24-7 arraignment sessions.
On our way to the courthouse downtown, the soldiers in charge in the curfew-enforcing checkpoints (huge barriers, heavily armed men, fiercely bright lights all like what I always pictured it would be like to leave East Berlin) scolded my dad for bringing his teenage son (always education, he thought I should witness this historic event).
I sat in a courtroom and got to watch how a legal triage evolved with lawyers and judges not used to criminal matters were guided into a functional process. My father's first client was a 50-something year old belated looter whose only criminal record was manslaughter in Mississippi. Dad got him personal recognizance in lieu of bail or confinement which was much easier to do given the sheer volume of prisoners. (He joked later that because his client had killed another black man in 1950s Mississippi, he could have argued that was probably only a misdemeanor at that time.)
The holding cells below were so packed that no one could sit and the yelling was deafening. It was quite a sight. Cops and bailiffs were yelling right back. It really seemed like the system and the whole city was dissolving right in front of me.
To read this bio, please join Ricochet.
This, above all, needs to be done. Otherwise we are prisoners to our own system.
To read this bio, please join Ricochet.
The problem today isn't like the one Judge Greene faced. When the garbage children rioted in the '60's, they were citizens. Further, an individual's participation in a riot seems like a thing that would have to be proven in each case.
Every illegal alien is prima facie in violation of U.S. law. It seems to me that all we need is one ruling from one backwater judge that any illegal, once identified, may be removed from our borders with no further process. If little judgy wants to assert himself, he can say "must" instead of "may."
To read this bio, please join Ricochet.
The trick is how to ascertain when illegal status is incontrovertible such that there is no need for or entitlement to additional process.
What about a demand for further process despite a complete absence of any evidence to contradict the finding of illegality? My suggestion is that after deportation, the US embassy provide a form in which the litigant states the grounds for a appeal/hearing/additional process to be reviewed by the appropriate tribunal. If the immigration court or other tribunal set up for this purpose finds no reason to issue such a ruling or finding, then there is no more process nor a return to the US to prosecute the claim. The goal being that (a) nobody gets to stay indefinitely with an unqualified claim or application because the process is overwhelmed and slow; and (b) there is still enough process in place to survive challenge.
I am unpersuaded that to much discretionary power for ICE will mean deportation of the homeless and naturalized citizens. At a minimum, protocol would necessarily involve determining a name and a country of origin to determine if and where to ship the arrestee. It is not complete data vacuum.
To read this bio, please join Ricochet.
Illegal immigrants deserve as much process I get at the DMV. Somebody checks your papers and sends away, if they are not perfect. If your papers are good you go to a clerk that serves you, if you have fee money and all your record is clear and tests are passed and .... The DMV deals with millions of people every year, no problem.
You're seeing five of 53 comments. Sign in, or join for just $5 per month, to read them all and add your own.