TRAC immigration court report leads to unsupported conclusion.

Monday, February 17th, 2014
By: Jonathan MontagJ.D.

TRAC, a data gathering, data research, and data distribution organization at Syracuse University, reported that immigration judges are deporting fewer aliens as a percent of those in removal proceedings. The report states:

Immigration and Customs Enforcement (ICE) has had diminishing success in convincing Immigration Judges to issue removal orders.  Such orders are now granted only about 50 percent of the time, the lowest level since systematic tracking began more than 20 years ago. For years, the rate at which removal orders were granted in response to DHS requests had fluctuated between 70 and 80 percent. For example, five years ago deportation orders were issued for 3 out of every 4 cases (76.2%) to reach the Immigration Courts. During FY 2011 that rate had fallen to 70.2 percent; by FY 2012 it had slipped to fewer than 2 out of 3 (62.6%). Last year court records indicated a 52.9 percent success rate, and during the first four months of the current fiscal year 2014 (October 2013 – January 2014) it was down to only 50.3 percent. 

TRAC interprets the data as a failure of ICE to succeed in removing people. For many reasons, The conclusions seem to me to be a  facile syllogism from the data, ignoring the reality of the immigration court system. It seems these are the postulates of TRAC:

1. ICE places in proceedings people it wants to deport;

2. ICE wins when it deports someone;

3. ICE loses when it deports someone;

4. The results in immigration court an be reduced to the binary deport and not deport.

Here are the actual and proper postulates:

1. ICE places in proceedings people that the statutes require to be placed in removal proceedings.  ICE attorneys have different standards for handling cases than the officers that initiate proceedings;

2. The immigration courts’ job is to determine eligibility to remain in the United States and ICE’s job is to make sure that the determinations comport with the law;

3. When an immigration judge grants asylum, Cancellation of Removal, adjustment of status, or whatever relief is available and ICE does not oppose the grant, it is a victory for all parties;

4. Immigration judges not only order removal or terminate cases, but they close cases because of discretionary policies articulated by Immigration and Customs Enforcement, USCIS, and the Department of Justice, and because relief from removal will ripen, but has not yet ripened.

Let’s use an example. Alice the Alien is encountered by an ICE officer while leaving a medical clinic with her blind United States citizen daughter. Alice has been in the United States for nine years and in addition to caring for her blind daughter, has two other United States citizen children that she cares for and supports through working full time. Her husband is a permanent resident who will be eligible to naturalize next year.

ICE determines that Alice is not lawfully present in the United States and sends her to immigration court. ICE attorneys evaluate her case and determine that Alice is not a prosecutorial priority for ICE. ICE moves to administratively close the immigration case. Of course Alice agrees. While TRAC may look at this as ICE failing in its mission, instead, ICE, like all law enforcement agencies, makes determinations about who it can pursue and who is not worth the effort. ICE now has more resources for its priority cases. Alice, who has hurt no one and has a full plate of responsibilities, is left alone.

Let’s modify the example. Alice’s facts are the same except Alice was arrested for shoplifting three years ago. Her contention is that a child grabbed a candy bar off the shelf while she was shopping and plopped it in her handbag. She did not notice the candy bar but store security did. Rather than fight the charge, she pled guilty to a misdemeanor shoplifting crime and paid a small fine.

ICE again encounters Alice and places her in removal proceedings. ICE attorneys feel that because of the shoplifting they will not exercise their prosecutorial discretion to seek administrative closure. The immigration judge learns that Alice’s spouse is a resident and will be able to petition for Alice’s permanent residence in a year and half. Rather than causing Alice all kinds of problems, the immigration judge uses his own authority, relatively newly provided to him, to administratively close the case so that in a year and a half he can entertain Alice’s green card application.

In both scenarios, it could be read that ICE has failed to deport, but in reality the system is simply being practical about applying the power to deport.

The data itself do not support many conclusions , but it very well could be that the figures highlight a disconnect in ICE’s behavior. It could well be that ICE officers who encounter aliens are placing them in proceedings when under ICE’s prosecutorial discretion policies, they could simply be left alone – like a policeman admonishing a youngster to behave himself and telling him to run along rather than arresting him. This would create the gap between the number of people placed in removal proceedings and the number actually ordered removed.

One last modification. Alice is encountered leaving the medical clinic. Alice is a permanent resident. Alice came to the United States as permanent resident as a young girl. In her early twenties she was convicted of drug possession. It was a dark time for her, but she persevered and put it all behind her. Now, ten years later she is encountered by ICE whose technical abilities to cull old court records and find aliens with old convictions gets better every day. An immigration judge determines that while ten year old drug conviction is indeed a removable offense, Alice merits forgiveness under the Cancellation of Removal statute based on her long residence in the United States, family ties, hardships to herself and her family if she is deported, her work history, and her rehabilitation. ICE attorneys do not oppose the grant of relief and Alice is allowed to stay in the United States.

Here, the issue is not that ICE has failed to remove Alice. Rather, ICE has placed into the immigration court system a person who, before the advances in technology allowing ICE to mine state databases for old crimes, would not have been encountered. This does not mean that ICE is failing to remove people, but rather requiring more people, many with minor crimes long ago in time, to go through the forgiveness process. ICE’s interest is to enforce the law, including allowing Alice to seek Cancellation of Removal. Alice’s success is not ICE’s failure. While this should be eminently clear, just to illustrate, let’s use another example. Suppose in response to shootings at movie theaters, the government decides that it will place officers, a Movie Security Agency, at movie theaters to randomly search movie goers. Astute observers of potential wrongdoing, the MSA finds security or criminal activity in ten percent of the people it searches. However, people object to the random nature of the searches, feeling that the MSA is profiling movie goers. (Just because someone is wearing cargo pants does not mean there is a reason to stop him for Milk Dud smuggling). In response, the MSA searches everyone. More people are caught who are security or criminal threats, but overall, only one percent of searches result in apprehension. While it is true that the MSA is finding ten times fewer people as a percent of searches (dropping from ten percent to one percent), this is not because of some sudden failure of the MSA, but because of changes in policy.

All too often USCIS, CBP, and ICE place people in removal proceedings who do not deserve to be there. These agencies, I believe, rely on ICE attorneys to prosecute cases without giving ICE attorneys the authority to analyze them before the instituting of proceedings. Thus, people who are not removable at all or who clearly fit into prosecutorial discretion criteria are placed in removal proceedings, which are soon terminated or administratively closed. However, the data does not reflect that something is wrong on the prosecution side. It rather shows that removal system needs major fixes so resources are better allocated to the nation’s goals – if anyone can figure out what the nation’s goals actually are. That is a political problem, not a legal or administrative one. Posted February 17, 2014.



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