The President is not the only determinant in deportation numbers.

Sunday, May 4th, 2014
By: Jonathan MontagJ.D.

For all these past five or six years we have been reading about how President Obama is the deporter in chief because of the large numbers of deportations under his watch. Recently, data has been published that shows that these deportations have not been happening in immigration court, but rather at ports of entry. Critics of the President somehow are (mis)construing the data as proof that the President has not been a party to the deportation numbers, somehow divorcing him from responsibility for what happens at the borders but not for responsibility for what happens inside the country. The question is, then, is the President responsible for the increased number of deportations at the border and the decreased number in immigration courts. My observation is that the President may have had a contributing role in reducing the numbers deported at the borders, which is simply offset by more people coming to the border and ending up being deported, and he also has a role in the reduction in the number being deported in immigration courts. However, other factors have a much greater impact than the President’s actions alone and to the extent that the President could do a lot more on his own to reduce deportations and has not, the rate of deportations fairly  can to this extent be attributed to him.

At the border

The Immigration and Nationality Act calls for the expedited removal of aliens coming to the border without proper status or admission documents or with no documents. Officers at the border effectuate these removals, not immigration judges. The exception is for aliens who make a claim for asylum or related relief, who, after some vetting, are allowed to pursue their removal claims in immigration court. During the Bush years, nearly all such asylum applicants were detained while pursuing their cases. Under President Obama’s administration, such aliens are often paroled into the United States and so can pursue asylum relief while inside the country. Simply allowing for the release of asylum applicants has an affect on removal rates as many aliens seeking asylum grow weary of detention, particularly if they are denied asylum and are appealing their denial, and seek removal instead of prolonged detention. With the current trend of courts finding that detention beyond six months without consideration for release is unconstitutional, more asylum seekers are able to be released and pursue their claims from inside the country. With chaos in Mexico and Central America, bad economic times returning in South America, turmoil from Tunisia to Afghanistan, political oppression and economic distress in the former Soviet Union and East Bloc, as well as in China, more and more people are coming to the United States and more amenable to expedited removal. As courts and the BIA are holding the line in denying asylum to people fearing persecution because of connections or imputed connections to organized crime, gangs, and drug traffickers, asylum claims are not a way to ward of expedited removal in many cases. Thus, despite some kindnesses at the border through less strict detention standards, the increased number of people coming to the border means more expedited removal. The huge expansion in the numbers of Customs and Border Protection and Immigration and Customs Enforcement officers also has a lot to do with the increase in expedited removals. That has something to do with the President.

The President could do more to reduce the number of expedited removals, such as allowing for those who left the country briefly and got caught at the border coming back to seek relief in addition to asylum and related relief, such as Cancellation of Removal for Certain Nonpermanent Residents, as discussed below, or allowing for more withdrawal of applications for admissions in lieu of expedited removal, or simply paroling aliens into the country who then would be eligible to adjust status based on marriages to United States citizens or having adult United States citizen children, but nothing like this has occurred. To the extent that nothing like this has happened, the President can be given some “credit” for the increase in expedited removals.

In immigration court

President Obama’s relatively recent policy changes granting deferred action to childhood arrivals, aptly named Deferred Action for Childhood Arrivals (DACA), as well as policies allowing for prosecutorial discretion and for provisional waivers of inadmissibility have reduced the numbers of aliens being removed in immigration court. However, these are not the only reasons. In addition, a certain class of aliens has become virtually deportation-proof, those eligible for Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b). This relief requires that an alien have ten years of physical presence in the United States, not have committed or been convicted of certain crimes or immigration offenses, and can establish exceptional and extremely unusual hardship to the alien’s United States citizen or permanent resident parents, spouse, or children. The statute allows for only 4,000 grants of this relief per year. The number granted per year exceeds this amount so those who cannot be granted carry over to the next year. When the new numbers open up on October 1, the start of the next fiscal year, the 4,000 numbers are quickly used up and the wait list grows again. As the wait list exceeds 4,000, people can wait for more than the next fiscal year to receive their grants of relief. As a result, immigration courts have become reluctant to hear Cancellation cases where the alien appears prima facially eligible for the relief (has ten years of residence, no disqualifying crimes, and qualifying relatives, with no regard to hardship issues) and instead administratively close the cases.

My observation is that large numbers of aliens who would ordinarily be denied Cancellation and end up removed are instead having their cases administratively closed because of the 4,000 cap issue. This substantial reduction in removal orders thus has nothing to do with the President. In addition, changes to asylum law allow immigration judges to require corroboration in asylum cases. Courts have determined that an immigration judge must give an alien the opportunity to produce corroborating evidence after hearing their cases, rather than simply denying the cases. Thus, asylum cases that could be resolved in one session with a removal order now are re-set to consider corroborating evidence. The result is that cases drag on for years rather than being resolved quickly. While, from an alien’s perspective this is a lot fairer than simply denying asylum because the alien did not perceive the need for some piece of corroborating evidence that the immigration judge did perceive the need for, it does reduce the deportation rate. The government shut down last year closed most immigration courts for two weeks – four percent of the work year. CBP, which handles expedited removals, was not shut down. The miserable winter also affected the immigration courts. These reasons are also not related to the President.

That lots of people got deported under the Obama administration has a lot to do with the President though the President has also done a lot to stop certain groups from being deported. The deportation numbers are the result of a huge number of variables – global factors pulling aliens to the United States, increasing resources to border security, legal decisions disfavoring prolonged detention, deferring adjudication in cases where relief cannot be granted, as well as the President’s detention, prosecutorial discretion, DACA, and provisional waiver policies. He cannot be given all the credit or all the blame regardless of what side you are on in this discussion. Posted May 4, 2014.


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