On October 30, 2017, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University issued a report captioned "Immigration Court Filings Take Nose Dive, While Court Backlog Increases". Despite the dire nature of the title, that report contains some good news on immigration enforcement efforts in the United States.
That report states that "the pace of [Department of Homeland Security (DHS)] issued NTAs (notices to appear) initiating proceedings in Immigration Court are substantially down since President Trump assumed office. This is surprising since ICE states that its apprehensions were reportedly up during the same period."
In an earlier post, I explained why "the number of aliens removed from the United States in FY 2017 was going to be lower than it had been in previous years," and why, from an immigration enforcement viewpoint, this reflected the effectiveness of the president's policies. The same logic applies to the number of NTAs.
An NTA is an immigration charging document, akin to a complaint or indictment in a criminal matter. Removal proceedings under section 240 of the Immigration and Nationality Act (INA) commence with the filing of the NTA with the immigration court.
As that report shows, there was a backlog in the filing of NTAs in immigration court; that is, more NTAs were issued than were filed, right up until January 2017. In fact, according to TRAC's statistics, between April 2016 and December 2016, 42,991 more NTAs were issued by DHS than were filed with the courts, more than double the average number of NTAs (21,252) filed with the courts per month during that period. The reasons why DHS issued NTAs but did not immediately file them in court are not clear from the TRAC report, but that report does show that year-old NTAs were only just being filed with the immigration courts in September 2017.
It would appear, however, that the difference between the number of NTAs issued and the number filed with the immigration courts had to do to some degree with a previous administration's policy of "prosecutorial discretion".
As the then-Acting Principal Legal Advisor for U.S. Immigration and Customs Enforcement (ICE) Riah Ramlogan stated in an April 6, 2015, memorandum captioned "Guidance Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented immigrants":
Consistent with the current practice, DHS's enforcement priorities will continue to be national security, public safety, and border security. DHS personnel, including OPLA attorneys, are directed to prioritize removal assets accordingly. OPLA attorneys should continue to review their cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities. OPLA should generally seek administrative closure or dismissal of cases it determines are not priorities. OPLA attorneys should also review available information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances are present that may warrant the exercise of prosecutorial discretion. Understanding that these factors and circumstances may change as the case progresses, if further prosecutorial discretion review is requested by the respondent, the case should be reviewed again in light of any changed facts and circumstances. Keep in mind that prosecutorial discretion may encompass actions beyond offers for administrative closure or dismissal of the case, including waiving appeal, not filing Notices to Appear, and joining in motions. (Emphasis added.)
In general, "'[p]rosecutorial discretion' is the authority of an agency or officer to decide what charges to bring and how to pursue each case." In the hands of the Obama administration, however, it became little more than a process by which to grant quasi-legal status to aliens who were removable from the United States. The belated filing of NTAs by DHS is indicative of an unwinding of that ill-advised policy.
My colleague, Dan Cadman, has offered an additional rationale for the late-filed NTA's identified in the TRAC report:
I have little doubt that many of those now-filed NTAs were deliberately held in abeyance and relate to Central Americans who illegally crossed the border into the United States at the Rio Grande Valley. The Obama administration was caught off guard and publicly embarrassed by the tidal wave of tens of thousands of Central Americans who poured in over the course of two or three years, and doubly embarrassed when large percentages of those same aliens, having been released on their own recognizance, were no-shows at their appointed court hearings. Both border and interior agents repeatedly complained that to "resolve" the matter, they were simply instructed to hold on to the NTAs and not file them with the courts. (Their complaints never received the watchdog or congressional scrutiny they deserved.) So what would inevitably happen during the first months of the Trump administration? Thousands of stockpiled NTAs start showing up in court statistics as newly filed.
I have no doubt that this is correct. In fact, I have a reason to believe that there may be tens of thousands of un-filed NTAs that relate to either "credible fear" cases and/or to "affirmative asylum" referrals. I raised this as an issue at the "Asylum Quarterly Stakeholder Engagement" meeting at USCIS on Friday, November 3, 2017. The existence of those NTAs was not confirmed by the USCIS representatives at that time, however I was approached after the meeting by a representative of a group that represents aliens in immigration court, who stated that she had clients who had been issued NTAs after filing affirmative asylum applications, but who had not been placed in removal proceedings yet. She also told me that her group had been attempting to obtain information on these un-filed NTAs, unsuccessfully, as well. Needless to say, the existence of a large number of un-filed NTAs will have "downstream" effects on the backlogs facing the immigration courts.
On the subject of those backlogs, "prosecutorial discretion" would also explain the increase in the court backlog identified in the TRAC report. The cases to which "prosecutorial discretion" applied were generally more complex, and many involved aliens with legal family members in the United States as well as potential relief, factors that would require the court to grant continuances, as well as longer hearings
The change in prosecutorial discretion policy between the Trump and Obama administrations is also, at least in part, responsible for a decrease in immigration court "completions". TRAC states in a footnote:
Immigration Court case completions are also slightly below FY 2016 levels. This is despite the fact that, as TRAC reported earlier, the Immigration Court had steadily increased the number of cases it had completed during the first four months of FY 2017 before President Trump assumed office. The main reason for the fall-off in closures since then has been the abrupt drop in prosecutorial discretion (PD) court closures due to a change in this administration's policies. PD closures reduce the backlog but don't count as judge "decisions." With the additional hiring of judges, the number of judge decisions ordering deportation has been rising. See July 17, 2017 TRAC report. Court decisions granting relief are also up. But these trends were insufficient to overcome the abrupt drop in PD closures. (Emphasis added.)
Counting prosecutorial discretion "closures" as immigration court case "completions" is a bureaucratic shell game. It does nothing more than kick a case down the road until either the alien is granted administrative relief or the alien commits an offense serious enough to qualify as a "priority" under the Obama administration's policies for removal, or a new administration enters office and changes the policy. In these cases, the latter occurred.
And, as the quote above states, "the number of judge decisions ordering deportation has been rising ... [and] decisions granting relief are also up." This is also good news.
If an alien is removable and does not have relief, the alien should be ordered deported. If an alien is removable, but is eligible for relief, relief should be granted. Removing either sort of case from the immigration court's docket is a waste of resources. The number of hours that an immigration judge has in a work day is limited, and a policy that requires judges to consider numerous motions for closure detracts from the amount of time they have to adjudicate cases that are ripe for decision, which is the reason those judges were hired.
Finally, TRAC states:
While ICE actively publicizes its success at apprehending individuals the agency seeks to deport, there are perplexing unanswered questions surrounding the actual effectiveness of the agency in meeting its stated goals. ICE has not released basic information, for example, that would allow the public to understand why if the agency's apprehensions are up, not only are fewer cases turning up in the Immigration Courts but actual deportations — many of which bypass the Immigration Courts — are also down.
This confusion may be due to some extent to a lack of complete knowledge on the part of TRAC. It admits: "Despite persistent FOIA efforts by TRAC and many others, ICE has continued to refuse to release the information that would help clear up these and other puzzles."
One reason, however, why ICE apprehensions may have increased, but deportations and immigration court filings may be down, could be that the agency is focusing on the more than 900,000 alien absconders; that is, aliens under final order of removal who have remained in the United States illegally. Even though those aliens have received final orders, most likely do not have travel documents, which are required to transport those aliens to their home countries. This would cause a lag between the time the aliens are apprehended and the point at which they are deported.
In addition, many alien absconders will move to reopen their proceedings after they have been apprehended, claiming, for instance, a lack of notice for a hearing that resulted in an in absentia order of removal. Again, the adjudication of such a motion would create a lag between arrest and deportation.
Again, Dan Cadman has posited an additional reason for an increase in apprehensions but a decrease in removals:
Another reason that many apprehensions would not, at least immediately, show up as NTAs is because a statistically significant number of illegal aliens who are arrested are amenable to prosecution for immigration-related crimes. A perfect (but by no means the only) example has to do with aliens who have been previously deported who then illegally reenter the United States. As my colleague Jessica Vaughan and I have documented, in recent years roughly one in four apprehensions, both at the border and in the interior, relate to aliens previously removed. Although doing so is a federal felony, under the Obama administration many such aliens escaped prosecution because various U.S. Attorney's offices established declination policies providing that they would not take such cases unless/until the alien had been removed administratively an additional three or four times after the initial removal. Thus, they became recipients of NTAs for each of those removals, until they once again hit the bar for prosecution acceptance applicable at the U.S. Attorney's office with jurisdiction over them when found.
But those prosecution rules have been changed by Attorney General Jeff Sessions, who has made very clear his expectation that all U.S. Attorney's offices will aggressively prosecute immigration crimes — whether for reentry after deportation, visa fraud, or whatever. Under these circumstances, we can expect that the filing of NTAs (or, as appropriate, initiation of other forms of removal processes) might be delayed while the aliens are prosecuted and, if convicted, serve their sentences, because it is only after release from custody by the Federal Bureau of Prisons or U.S. Marshals Service that they will once again be turned over to ICE to face removal.
Cadman's assessment makes sense, and his reasoning is in line with the administration's stated priorities. The prosecution and incarceration of aliens who have entered illegally, and in particular repeat offenders, provides a strong disincentive for future aliens to attempt illegal entry. This is particularly true for "economic migrants": If a foreign national is considering coming to the United States to make more money than that national could make in his or her home country (the stated rationale of most illegal aliens), the possibility of incarceration would be a factor negating any anticipated economic benefit, for the simple reason that the foreign national could not work while in a U.S. prison. In addition, if that hypothetical foreign national had any chance of immigrating illegally to the United States, a criminal record in this country would make such potential immigration far less likely, if not impossible.
All of this said, DHS, the Executive Office for Immigration Review (which has jurisdiction over the immigration courts), and the Justice Department's Criminal Division should publish the number of NTAs issued, the number NTAs filed, the number of orders of removal issued, the number of removal proceedings in which relief was granted, the number of convictions for illegal entry, and the number of aliens removed, on a monthly basis. Such transparency would give the public more insight into the effectiveness of our country's current immigration enforcement efforts and better inform the current immigration debate.