Immigration judges deportation orders fall under Biden
The Biden administration’s more lenient approach to illegal immigration is now manifesting itself in immigration courts across the country, where in the last three months of the past fiscal year, judges have issued deportation orders in less a third of cases.
This is down dramatically from 2019 and 2020, under the Trump administration, when 80% of cases resulted in removal orders or voluntary departure grants.
Department officials said the numbers are the result of pressure from the administration to expand the scope of “prosecutorial discretion,” freeing thousands of migrants, even though judges have not ruled in their favor. Instead, the cooperation between Homeland Security lawyers and the migrants has resulted in record rates of rejected or closed cases, which amounts to a tacit agreement for these migrants to remain in the country illegally.
The more relaxed approach comes even as an increase in borders has meant that around half a million migrants have been captured and released by Homeland Security in the past year. Yet immigration courts have issued only around 40,000 deportation orders.
Experts said this mismatch is particularly troubling because it could help lure others into making the illegal trip, believing they will try their luck with immigration courts.
A source within the department, who has been following the developments but was not authorized to speak publicly about them, said it appeared the new team “was pushing to smash the immigration court system.”
As part of the Department of Justice’s Executive Office of Immigration Review (EOIR), immigration courts are the generally invisible backbone of the country’s immigration consequences delivery system. Undocumented immigrants who are not immediately evicted appear in court for hearings, and judges hand down rulings that sharpen U.S. immigration law.
The cases are being pursued by attorneys for Homeland Security’s deportation agency, US Immigration and Customs Enforcement.
Changing patterns of illegal immigration over the past decade have strained the ICE and EOIR. Immigration courts closed fiscal 2021 on September 30 with 1.4 million pending cases, by far the record.
And although the caseload increased, judges completed just 115,000 cases during the fiscal year, the lowest number in more than 25 years. This is in part due to the coronavirus pandemic, “but not in full,” a department official said. The official said there had been a “complete de-emphasis” on business completion.
“This level of dysfunction is unprecedented in any government agency and should warrant a formal investigation,” the official said.
There are also a few hundred thousand cases that appear to be missing from the EOIR file. While around half a million border jumpers were captured and released or transferred by Customs and Border Protection in fiscal year 2021, immigration courts have only registered around 250,000 new ones. case.
EOIR, in a statement to the Washington Times, said its records reflect cases, known in government parlance as “Notices of Appearance,” or NTAs, that Homeland Security has actually filed in court. There are “a variety of reasons” why Homeland Security would keep records, EOIR said.
At some point, these NTAs should be registered with the EOIR. But for now, that means as bad as the EOIR figures appear to be, the reality is even worse, with hundreds of thousands more cases adding to the agency’s workload once Homeland Security will have submitted them.
“Something fun is going on there, but I can’t put my finger on what it is exactly,” a second Justice Department source said.
Andrew R. “Art” Arthur, a former immigration judge and now a resident law and policy researcher at the Center for Immigration Studies, said he expects the Biden administration to respond to this case crush by suppressing some cases.
“They’re just going to drop some cases, they’re just going to focus on the main ones,” Arthur told The Times. “People who were arrested before 2020, a lot of these cases are just going to go down the drain. “
He said the government should initiate a fast-track process for hiring new immigration judges just to keep pace with this future workload.
Still, EOIR just finished its slowest year of hire since 2017. And the judges aren’t doing a lot of work anymore.
The agency finished last fiscal year with 559 judges, who completed 114,751 cases, or just over 200 per judge. In contrast, two years earlier, 442 judges had completed 276,993 cases, or more than 600 per judge.
The Biden administration announced last month that it was canceling a workload target imposed by the Trump administration.
EOIR told The Times in its statement that it is trying to get more judges in the pipeline, with 19 to add to the ranks this week and to be fully invested next month, once they finish training the new ones. judges.
“Many variables affect the process of hiring immigration judges and it is not unusual for immigration judge hiring rates to fluctuate from year to year,” said the agency.
The EOIR is licensed for 634 immigration judges, and the Biden administration has asked Congress to approve the money to hire an additional 100 judges in its 2022 budget.
Overall, the Biden administration’s approach to EOIR has been to try to erase Trump’s legacy as much as possible.
The agency director, a career public servant, was ousted and Attorney General Merrick Garland overturned several immigration decisions made by Trump’s Justice Department aimed at curbing uncertain asylum claims. Immigrant rights groups argued that valid claims were also blocked by the changes of the Trump era.
And over the summer, the ICE issued new guidelines urging prosecutors to look for reasons to drop cases.
The results are just starting to be seen, department sources said.
Among the NTA cases in which the EOIR issued initial decisions in 2019 and 2020, judges ordered the issuance of a deportation order about 80% of the time. In 2021, that figure has fallen to around 40%. In the past three months, when Biden’s policies were most firmly entrenched, the rate was only 32%.
The cases granted, where the migrant succeeds, have increased slightly. But the real change has come in the layoffs or layoffs – effectively dropping the procedures and giving the migrant a tacit consent to stay. These decisions fell from around 8% in 2019 and 2020 to 42% in the last fiscal year.
The cases that have been closed or dismissed are generally relatively small, Arthur said. Otherwise, if migrants had a strong case, they would insist that their asylum claim be fully considered, as obtaining asylum brings permanent legal status and a possible chance of obtaining citizenship. A dismissal or dismissal does not bring permanent legal status, although many will be able to apply for a work permit.
EOIR, in its statement to The Times, said it was not focusing on the eviction order ratio.
“In the exercise of justice, our arbitrators decide each case, including requests for termination or rejection and requests for voluntary departure, on the merits and in accordance with the law, regulations and previous decisions of the States- United on immigration, regardless of how those results feed into aggregate data, including the ratio you mention, ”the agency said.
The counters of the American Immigration Lawyers Association applauded the increase in layoffs, saying they often represent cases where people facing deportation had a valid claim to make with another agency, such as the Department of ‘State or United States Citizenship and Immigration Services.
A growing rate of layoffs and layoffs is part of a “common sense” approach to setting enforcement priorities, according to AILA.