TRAC, the Transactional Records Access Clearinghouse, which describes itself as a data gathering, data research and data distribution organization at Syracuse University issues statistical reports about immigration court matters. TRAC reports analyze backlogs in the immigration courts and compared statistics about grant rates for different types of cases in the different immigration courts and by immigration judges. On November 9, 2010, it issued a report, “ICE Seeks to Deport the Wrong People,” which analyzed the results of immigration court proceedings and concluded that ICE seeks to deport the wrong people because so many aliens who are placed in removal proceedings are not ultimately ordered removed.
Part of what I do is represent aliens in immigration court. I work to keep aliens here who the government sends to immigration court when they are not authorized to stay in the United States either because they lack permission to be in the United States or their conduct merits the revocation of the permission to be in the United States. The report title indicates that ICE, Immigration and Customs Enforcement, a branch of the Department of Homeland Security (DHS), is the “seeker” of removals, however removal cases are initiated not only by ICE agents, but by Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS), other DHS immigration bureaus. However, it is ICE that prosecutes removal cases through its Office of Chief Counsel.
The thrust of the TRAC report is that the immigration court system is the vehicle that DHS uses to remove people who do not belong in the United States and since many people sent to immigration court are not ordered removed, the system is failing. This perspective of the immigration court that startled me as I had not really looked at it that way before. Criminal courts are designed to prosecute and convict criminals. If defendants in criminal courts were largely acquitted, then it would be safe to say that police were arresting the wrong guys or prosecutors were prosecuting the wrong people – or that police were inept in gathering evidence or prosecutors were particularly inept in prosecuting them, or the courts wre excessively soft on crime. In any case, there are problems that needed to be solved. Analogously, as TRAC sees it, if aliens are sent to immigration court and not ordered removed, then something is wrong – most likely that the wrong people are being sent to immigration court.
My experience is not that immigration courts are designed only to remove people but that immigration courts are designed to dispense benefits unavailable elsewhere. Certain relief is only available in immigration court – Cancellation of Removal for Certain Nonpermanent Residents, Cancellation of Removal for Certain Permanent Residents, asylum claims for arriving aliens,Withholding of Removal and Convention Against Torture (CAT) relief, waivers for obtaining permanent residence improperly, and adjusting status or seeking asylum when already in immigration court – there is no concurrent jurisdiction with USCIS. Thus, for many aliens, immigration court is not only the place you end up when you need to be removed, but the place to go if you need permission to stay. The downside of being in immigration court is that if you do not merit the relief you seek, the alternative is deportation, or, sometimes, voluntary departure. It is high stakes because of the potential hugely negative consequence, removal, but it is the only place to go for many positive consequences.
Instead of the analogy of criminal court, a more apt analogy may be taking a driving test at DMV. People take the test to get a license. Some get them and some are denied them. While passage rates and determinations as to whether the test is a meaningful indicator of driving competence are certainly valid concerns, no one would state that if DMV passes most people who apply for licenses that it is doing a bad job.
The question really is whether the immigration court is properly a benefit-bestowing body. In light of the backlogs and costs of the system, is it the most efficient way to make removability decisions and grant benefits to those who deserve them?
First, lets look at the TRAC statistics. They indicate that so far in 2010 the immigration courts disposed of 173,634 cases. Of those, 18,765, or 10.8 percent, were dismissed by the immigration court because, according to the report, “there were no grounds for removal.” I venture to say that saying “there were no grounds” is a bit of an overstatement and more accurately, those 10.8 percent were cases where removal could not be proved. For example, an alien, even a permanent resident, is removable for a drug conviction. A CBP officer who encounters an alien coming into the country at an airport who identifies an alien through a database as having suffered a drug conviction may arrest the alien to have him or her removed from the United States because of the drug conviction. When the alien gets to court, it may turn out that the conviction documents were destroyed – many courts routinely discard conviction documents from minor offenses after ten years. It may be that the documents do not identify the drug so the immigration judge cannot determine whether the drug was a federally listed controlled substance. In such cases the removal case would be terminated for a failure of proof, not exactly the same as there being no grounds for removal.
That being said, 10.8 percent is a large percentage of cases that should not have been sent to court at all. Certainly, ICE, CBP, and USCIS should not be placing so many people in removal proceedings who cannot be found removable. One big problem is that these agencies tend to place the aliens in proceedings and analyze the viability of the charge later. With the incredible stress that being placed in removal proceedings, often initiated with an arrest and detention causing a loss of income, a job, and a home, the agencies should be encouraged – or mandated – to first gather the evidence and evaluate it, and then initiate removal proceedings. This is particularly important because while it is ICE Office of Chief Counsel attorneys that prosecute the cases, it is not attorneys who initiate removal proceedings. Instead, USCIS adjudicators, ICE officers (the ones you see on TV with the jackets that say, “ICE Police”) and CBP border inspectors (the ones who ask if you at the airport or land and sea borders if you are bringing back any fruit) are the ones who initiate removal proceedings – a task they are ill-suited to do. It would be as if street cops drafted and filed indictments in the criminal courts.
Also according to the statistics, 22,701, or 13 percent, were granted relief, which means grants of asylum, withholding, and CAT, adjustment of status, or one or other of the two kinds of Cancellation of Removal. EOIR’s statistics for 2009 indicate that 10,186 asylum grants were made, nearly half of all the cases where an immigration court granted relief. Also in 2009, 7,356 people adjusted status, 3800 were granted Cancellation of Removal for Certain Permanent Residents or its predecessor relief, 212(c), and 4,000 were granted Cancellation of Removal for Certain Nonpermanent Residents in all its forms, including its predecessor relief, suspension of deportation.
Assuming that the backlogs in the immigration court are a problem, one solution is to allocate more resources to it – more courts, more judges, more prosecutors, etc. Of course, that will necessitate more legal clerks, more administrative staff, and more appellate court judges and staff. It all gets very expensive. Another alternative is to weed out cases that need not be in immigration court at all or to simplify processes. A lot of this has already happened.
In 1997, Congress allowed CBP officers to order the removal of arriving aliens who were not permanent residents who lacked a proper visa or were entering with fraudulent documents. According to the Department of Homeland Security, 106,600 aliens were removed by an immigration inspector’s order. Immigration judges ordered 185, 314 removals in 2009 according to EOIR’s statistics. Thus, non-immigration judge orders accounted for 36.5 percent of all removal orders. This certainly reduces the workload of the immigration court which used to process arriving alien removals, though before 1997 many aliens arriving at the border without documents or with false documents were probably turned away rather than arrested and sent to immigration court for removal.
ICE initiated a policy of allowing aliens seeking to adjust status to terminate removal proceedings so they can adjust status through USCIS. ICE allows this in “easy cases,” where adjustment is a foregone conclusion. As for asylum cases and the Cancellation cases, there are no mechanisms to farm any of them out. Asylum cases could be farmed out to the Asylum Offices for initial adjudication or their authority expanded to grant Withholding and CAT relief. ICE could come up with a system where Cancellation cases are pre-screened and adjudicated by ICE. After all, the old 212(c), the predecessor to Cancellation of Removal for Certain Permanent Residents, could be adjudicated by CBP officers at the border so the precedent exists.
Currently, ICE detention centers are full. Court dockets are backed up. Many aliens are permanent residents who are eminently qualified for Cancellation of Removal for Certain Permanent Residents, but must wait months to get their opportunity to ask for relief. Similarly, many undocumented aliens must wait years for a hearing to ask for permanent residence through Cancellation of Removal for Certain Nonpermanent Residents or asylum and related relief. In some of these cases, it may be necessary for an immigration judge to thoroughly vet the life of the individual and his or her relief claim to see if he or she is worthy of relief. In many of these cases, it is very obvious that relief should be granted. A pre-screening and allowing ICE, CBP, and USCIS to grant these cases is warranted. Then the immigration courts can more expeditiously deal with the cases it should deal with – deporting those without any relief and making tough decisions on those few cases where the results are not obvious and the risks of a faulty decision are high – like granting relief to a person who committed violent crimes and may commit more as opposed to a shoplifter who, if wrongly forgiven, may shoplift again. Of course, another way to reduce the backlogs is to make more visas available to more people through moving up the crazy-long backlogs, reducing the number of removable offenses or imposing a statute of limitations so people are not arrested and detained for crimes they committed 20 years earlier, allowing more people adjust status by loosening up restrictions on those with visas available – like requirements of having been admitted and being in lawful status, and using prosecutorial discretion as a real tool, rather than as a rare, seldom granted act of grace.
Immigration court is often the gateway to legalization. It does not need to be the sole path for so many. Changes could spread decision making around the government which would shorten backlogs, save money, reduce the negative impact on aliens, and reduce human rights concerns. Posted December 19, 2010.