A report released in late October by the Special Inspector General for Afghanistan Reconstruction (SIGAR) tells a story as familiar to American immigration authorities as it is now to American military officials. The recent murder of eight in New York City is likewise a savage reminder of how little we know about the many we invite past our borders and into our neighborhoods.
Between 2005 and 2017, according to the report, 2,537 military trainees from Afghanistan arrived here. Over the same period, six percent — 152 of them — went AWOL (absent without leave). While 70 fled the U.S., 27 were placed in deportation proceedings. Strangely, 39 absconders were awarded legal status and 3 more were allowed to return to class. But worryingly, 13 remain at-large and this worry is real.
{mosads}Trainees receive superior combat instruction. Their disappearances implicate national security because they involve fighting age, weapons-trained recruits who are demonstrated flight risks. Except for possible return to Afghanistan, SIGAR found trainees suffer no consequences for going AWOL. As a result, AWOL rates are expected to remain steady or increase, and potential security threats will persist. These dynamics and their parallels to America’s experiences with other aliens are dramatically similar, invoke the same threats, and disclose a larger truth.
Asylum claimants — chiefly visa overstayers and illegal border crossers — have for years ignored immigration court proceedings. They too go AWOL. From 1996 through 2016, 952,291 litigants — 37 percent of all aliens free pending trial — never showed for court. Absconders come not only from Mexico, El Salvador, and Guatemala, but also from those nations that aid and abet terror.
Asylum statistics from 2003 through 2015 reveal that 576,893 aliens failed to show for their hearings. Among them were 3,095 aliens from the 36 nations labeled “Specially Designated Countries” (SDCs), countries that “promote, produce, or protect terrorist organizations or their members.” Of the 62,409 nationals of those countries who sought sanctuary in the United States, five percent fled court and disappeared.
Applicants from nations identified as State Sponsors of Terrorism (SSTs) did no better. Syrians, Sudanese, and Iranians seeking asylum — 6,279 altogether — skipped their court dates at the same five percent rate, meaning 338 SST nationals just vanished. Homeland Security officials predict that few of these runaways will ever be found. In fact, the Department of Justice Inspector General found that only six percent of failed asylum applicants from terror-linked nations were removed from U.S. soil. And the broader experience of America’s immigration courts is just as relevant and cautionary.
In the five years following 9/11, 50 percent of all of people free awaiting trial — 360,199 out of 713,974 — failed to appear. Within the raw memory of fallen World Trade Center towers, 59 percent of all aliens released on their own recognizance in 2005 and 2006 absconded.
Yet all this was foreseeable to immigration officials long before. According to a 1989 report from the General Accounting Office (GAO), “aliens have nothing to lose by failing to appear [for court].” From 1959 through 1989, GAO noted, illegal entry increased by 2,200 percent — from 45,000 in 1959 to 1.2 million in 1989. But as illegal entry grew, so did failures to appear. Still, GAO observed, absconders experienced no adverse consequences, such as being removed from the U.S.” It added that “disregard for the courts” stemmed from a “lack of repercussions.” Predictably, the problem only got worse.
In the dysfunction that now tarnishes our commitment to the foreign-born, this certainty emerges. Our current immigration debates derive not from historic enforcement of federal law, but from its lack of enforcement; not from consequences for violations, but from the absence of consequences. Until recently, this lesson was lost on a federal government that diminished, rather than dignified, the millions beckoned by the promise of something better on our shores, and left us all less safe in return.
Attracting the talented, redeeming the persecuted, and removing the offender must become the objectives of America’s immigration system, and a prescription for enforcing laws that elevate as well as sanction those whose lives began in other lands.
Mark H. Metcalf was a judge on Miami’s immigration court from 2005-08. He served as special counsel for election reform in the Justice Department’s Civil Rights Division in 2002, and as associate deputy general counsel for Guantanamo Issues from 2004-05 at the Department of Defense. He is presently a prosecutor in Kentucky.