In my last post, I referenced a RealClearInvestigations report describing the deleterious effects of the president’s immigration policies on removal proceedings before the 600-some immigration judges (IJs) in the nation’s immigration courts. It’s depressing, but most shockingly, the researchers were rebuffed when they asked how many cases involving facially removable aliens have been dismissed in the name of “prosecutorial discretion”. The administration thinks it’s none of their business, or yours, either — even though you are paying the $891.19 million tab.
Removal Proceedings. Briefly, except for the dwindling number of arriving aliens (including illegal migrants) subject to expedited removal and those arriving aliens subject to expulsion under orders issued by CDC under Title 42 in response to the Covid-19 pandemic, DHS must first obtain an order of removal to remove a removable alien (formally an alien “amenable to removal”) from the United States.
Aliens (including green card holders) may be amenable to removal on any number of grounds, but most in immigration court entered illegally, overstayed their nonimmigrant visas, or committed some criminal offense that Congress has designated as a ground for removal.
This removal process commences when DHS files a “Notice to Appear” (NTA) with an immigration court. Congress — which normally punts the big stuff to the executive branch — was punctilious in delineating what it expected DHS to include in those NTAs, and more than once the Supreme Court has been dragged into debates over whether specific NTAs complied with those rules, or not.
Once the NTA is filed, the case is assigned to an IJ, and the alien is formally designated as a “respondent” in removal proceedings. Again, Congress went to great pains to choreograph exactly how it intended removal hearings to run, which it specifically stated were to “be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States”.
At those removal hearings, the IJ determines whether the respondent is an alien amenable to removal (which is usually perfunctory, but not always) and whether the removable respondent is eligible for a form of relief (like a green card) or protection (like asylum) that would allow him or her to stay.
At the end of the removal hearing, the IJ issues an order of removal, which either the respondent or the ICE attorney (who is supposed to represent your interests in immigration court) — or both — have a right to appeal to a separate administrative tribunal, the Board of Immigration Appeals (BIA).
Like the immigration courts, the BIA is within the Executive Office for Immigration Review (EOIR), a DOJ component with an FY 2022 budget of $891.19 million.
If the BIA dismisses the respondent’s appeal, the alien can file a petition for review with the circuit court having jurisdiction over the place where the removal hearing before the IJ occurred. If ICE is the loser, it can’t go to federal court, but can ask the attorney general to review the decision on “certification”, though that’s rare (but a tack I successfully took when I was an INS trial attorney).
Only after that process is completed does DHS have a “final order of removal” allowing it to remove aliens who were often simply removable in the first place. Congress wanted, however, to ensure that the system balanced the rights of the alien against the rights of the American people (citizens and lawful aliens) and accorded each “due process”.
The Immigration Court Backlog. Not surprisingly, removal proceedings are often a time-consuming process, but not always. Some aliens just want to go home, though most don’t, and others want to fight all the way to the Supreme Court.
That has led to a massive backlog in the immigration courts, which is largely a consequence of the fact that — until the Trump administration — the immigration courts were an underfunded backwater in our massive immigration system, resources for which rarely matched the number of aliens amenable to removal.
In FY 2016, the fiscal year before Trump took office, there were just 289 IJs hearing more than 520,000 pending cases. Trump’s first AG, Jeff Sessions, prioritized IJ hiring, and by FY 2020, 517 IJs were hearing cases.
The problem is that by FY 2020, the immigration court backlog had taken on a life of its own, as the number of pending cases more than doubled over FY 2016, to 1.26 million-plus.
The wait time between each removal hearing (there can be anywhere between one and four-plus per case; my record as a trial attorney was greater than 40) also increased, from 672 days in FY 2016 to 811 in FY 2020. Immigration court closures simply exacerbated the problem, and by FY 2021, the waiting time grew to 934 days.
“Prosecutorial Discretion” and the Mayorkas and Doyle Memos. As I explained In my last post, Kerry Doyle, ICE’s Principal Legal Advisor (the agency’s de facto general counsel) issued a memo in April directing her attorneys to tank removal cases involving aliens amenable to removal if those cases did not fall within immigration enforcement “priorities” that had been laid out by DHS Secretary Alejandro Mayorkas in his own, September, memo.
The Mayorkas memo was vacated in June by a federal district judge, but the administration has requested that the Supreme Court stay that vacatur pending appeal.
The basis for both Mayorkas’ memo and Doyle’s is that DHS has “prosecutorial discretion” not to question, arrest, detain, prosecute, and remove aliens, even if they are removable and Congress has directed their removal.
The Fifth Circuit, dismissing the administration’s stay request of that district court order, found that the “Considerations” memo that accompanied and implemented Mayorkas’ compelled officials to comply with the Mayorkas memo “in a manner that violates statutory law”, which if sustained would likely implicate the Doyle memo, as well.
There is also a question whether such “program-wide” exercises of immigration-related prosecutorial discretion would pass legal or constitutional muster. Otherwise, the Biden administration could simply grant a mass amnesty by dropping all or most pending cases in the exercise of its “discretion”.
How Many Cases Have Been Dropped? The American Immigration Lawyers Association (which represents aliens’ counsel) estimated that “at least 700,000” removal cases — 40 percent of the immigration courts’ backlog — were on the chopping block under the Doyle memo. How many cases involving aliens amenable to removal has ICE tanked, though?
DHS “declined” (i.e., “refused”) to tell RealClearInvestigations how many respondents have received such prosecutorial discretion, asserting that "[s]tatistics are not available at this time.” Given the millions Congress has dumped into PLAnet, the ICE attorney case management system ($13 million in FY 2022 alone), that is a questionable assertion.
Neither EOIR nor DOJ disclose the figure, either. Their latest EOIR statistics for FY 2022 (through the end of March) reveal that in removal cases that commenced with the filing of an NTA, IJs have ordered 30,659 respondents removed, but have terminated an additional 16,266 cases and dismissed 19,886 others.
Terminations and dismissals are historically rare, so the latter two numbers are extremely high, though EOIR fails to explain on what grounds those 36,000-plus cases were dismissed and terminated. And notably, that was even before Doyle issued her prosecutorial memo in April.
Where Are the New IJs Biden Promised? RealClearPolitics quotes a former IJ who left the bench in 2009, and who opined: “The resort to prosecutorial discretion seemed inevitable in a situation where the system is overwhelmed by its caseload and its judges are appointed by the attorney general and largely serve at the AG’s pleasure.”
Respectfully, given the fact that Congress went to such pains to set up the removal hearing process, the least that the Biden administration could do is to follow that process all the way through, rather than attempting to cut the backlog by turning respondents without relief — including criminals — out on the streets.
Nor is dismissing cases involving aliens amenable to removal the only way to cut the backlog. In fact, it’s not the method then-candidate Joe Biden promised he would use on his immigration campaign website, where he vowed to: “Double the number of immigration judges, court staff, and interpreters.”
As Biden explained: “There is a backlog of more than one million immigration cases in the administrative system resulting in applicants often waiting years before their cases are heard. This increase in vital immigration court staffing will support timely and fair adjudications for asylum and other cases.”
A one-million-plus case backlog is the “good old days”. It’s more than 1.636 million today, and yet the number of IJs on the bench increased by just 47 in the first half of FY 2022 (while others appointed under Trump have been terminated under questionable circumstances).
Your Right to Know. The administration owes an obligation to the American people to disclose the statistics that detail the dire effects of its policies on our immigration system. Again, EOIR’s budget is almost $900 million. Americans have a right to know how their money is being spent.