In blog postings in the last few months, I've suggested that the Obama administration will do its level best in its waning days in office to issue as many policy directives and rule changes as possible. I've noted a couple of these last-ditch efforts in the immigration arena, including one that waters down what constitutes "extreme hardship" to the level of farce.
I'm sure there are many motivations for these multiple final manipulations of the regulatory and policy guidance mechanisms: To try to embed as far as possible into the bowels of government those "transformational" processes that will be difficult to undo; to wreak mischief and make the incoming administration's job of undoing all the regulations that much more difficult; perhaps even, knowing that much will be undone, to lay out the bases for future litigation by aliens whose "rights" to stay or to avoid removal are damaged, abridged, or circumscribed by the rescission of this White House's regulatory "interpretations" of statute.
So when I discovered that the Executive Office for Immigration Review had issued a regulatory change in the Federal Register relating to its handling of suspension of deportation / cancellation of removal cases, I suspected the worst. I'm happy to say I was wrong.
As background, it's important to know that Congress has imposed annual numerical restrictions on the number of cases that may be granted suspension or cancellation (8,000 per year at present), and precluded immigration judges or the Board of Immigration Appeals (BIA) from issuing grants once the annual quota was reached.
The rules fleshing out the relevant statutes went further, though, and precluded the judges and BIA from issuing any decisions — even in those cases where they had determined that the alien should be denied. The result, of course, is that EOIR was forced to hold these cases in abeyance pending a new year and new quota allocations. Because the quotas have been used up quickly each year, this resulted in a perpetual system of backlogs and holdovers, including the denials that otherwise could have been flushed from the system, thus promoting judicial efficiency and economy.
It's important to note that the backlog also bled over to the Office of the Principal Legal Adviser in Immigration and Customs Enforcement (ICE), the division housing the trial attorneys who prosecute removal cases in immigration court. They too were obliged to sit on these cases within their own docket of unresolved matters, not knowing which were slated for approval or denial because all of them were being held "in reserve" by EOIR.
The rule change will now permit immigration judges and the BIA to move forward on denials so that at least this portion of the oversubscribed suspension/cancellation cases of aliens seeking relief can be washed out of the system or (in the case of further appeal) at least pushed forward to the next stage.
What a breath of fresh air: common sense being applied to help alleviate at least a small portion of the overwhelming backlog confronting EOIR (a backlog, which, as of November 9, exceeded 521,000 cases according to the Transactional Records Access Clearinghouse). It's a small step, but small steps in the right direction count because they can add up.
The next steps in helping EOIR clear up its backlog will be up to the president-elect and his new team. The Obama administration almost completely dismantled those due process provisions embedded in law that permit expeditious removal of certain categories of aliens without referral to the immigration courts. (See here for a fuller explanation of the various means of deporting aliens.)
It's time to re-institute those proceedings instead of setting up a system of gridlock deliberately designed to cripple the finely tuned road map for a fair but effective system of alien control and repatriation of those who are illegally in the United States, working unlawfully, or committing crimes rendering them deportable.