The latest report from Syracuse University's Transactional Records Access Clearinghouse (TRAC) on “Outcomes of Deportation Proceedings in Immigration Court” reveals that the percentage of aliens in proceedings who have been ordered removed has plummeted in FY 2021, while the percentage who were allowed to “stay” in the United States has soared. The Biden administration’s anti-ICE agenda is almost definitely to blame to a significant degree for the difference, but COVID also has played a role.
According to TRAC, thus far in FY 2021, just 40.9 percent of all case “outcomes” in immigration court were orders of removal, while the percentage of such outcomes in which aliens were allowed to stay—either because they were granted relief, or because their cases were terminated or were closed—has grown to 59.1 percent of the total.
In FY 2019, by comparison, 72.2 percent of outcomes were removal orders, whereas the percentage of outcomes in which the alien was allowed to stay was a mere 27.8.
The percentage of outcomes in which aliens were allowed to stay increased slightly to 29.6 in FY 2020, when the percentage of those in which aliens were ordered removed was 70.4, but the majority of outcomes had been removal orders since FY 2017.
None of this should come as a surprise to anyone who has followed the Biden administration’s implementation of its anti-enforcement crusade.
The first shot in that effort was fired on January 20, when then-Acting DHS Secretary David Pekoske issued a memo captioned “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities”. With minor exceptions, that memo limited DHS enforcement of the immigration laws to three specific groups of aliens: Spies and terrorists; those who entered illegally after October 31, 2020; and certain gang members and individuals convicted of aggravated felonies.
The next salvo was on February 18, in the form of guidance from Acting ICE Director Tae Johnson that implemented the limitations on immigration enforcement in the Pekoske memo. It restricted officers’ ability to not just remove aliens, but also to question, arrest, and detain them, in line with the limited “priorities” in the Pekoske memo.
Bad policies having a tendency to roll downhill, on May 27, ICE’s Principal Legal Advisor (the agency’s general counsel) John D. Trasvina issued guidance that applied the restrictions on immigration enforcement in the Pekoske and Tae Johnson memos to ongoing cases in immigration court.
Trasvina’s guidance was directed to ICE attorneys in their exercise of “prosecutorial discretion”. In this context, that means a decision not to file charges or prosecute in cases involving removable aliens, to agree to aliens’ motions to continue or terminate, to concede eligibility for bond or relief, and to refrain from appealing decisions that went in the alien respondents’ favor.
It should come as no surprise that most aliens in removal proceedings are not terrorists, spies, aggravated felons, or gang members. And, even before the disaster at the border that has been triggered by the administration’s scrapping of successful Trump policies that discouraged illegal entries, there were still an estimated 11 million illegal aliens in the United States—each subject to removal.
The Pekoske and Tae Johnson guidance implementing the Biden administration’s anti-enforcement policies therefore provide safe haven for millions of illegal aliens who have not already been placed into removal proceedings, but it is Trasvina’s that extends that security blanket to cover nearly all of the 1.3 million aliens who are already in court.
That said, however, the TRAC data only reflects outcomes in removal cases through May 2021—that is before full implementation of Trasvina’s guidance. Analyzing why TRAC’s removal/stay numbers have shifted so significantly since last fiscal year therefore requires reference to other data and some educated guesswork.
One factor plainly was the COVID pandemic, which prompted shutdowns at many of the immigration courts as early as late March 2020. As I explained at the time, that meant that already scheduled hearings were cancelled, and many of the lower-priority cases then pending were likely terminated or closed in response.
Despite the pandemic-related shutdowns, however, according to DOJ statistics, the immigration courts still completed more than 231,650 cases in FY 2020. That is more than 83 percent as many they completed in FY 2019, so unless the courts were exceptionally efficient in the first six months of the last fiscal year, they were still completing a lot of cases through those shutdowns.
That, however, has changed significantly this fiscal year: DOJ reports that courts had completed just fewer than 43,700 cases through the first six months of FY 2021.
As an explanatory aside, I note that DOJ’s statistics and TRAC’s are somewhat different, both in terms of the cases on which they are reporting and the time periods each covers.
TRAC’s are based on 68,280 “outcomes” in removal cases through the end of May, which as explained above includes cases that were closed but not “completed” under DOJ’s definition. TRAC’s statistics also include two months (April and May) that are not included in the DOJ numbers.
As a second aside, I also note that the TRAC data makes it impossible to dispositively determine why exactly there is such a stark discrepancy between the percentage of outcomes in which aliens have been allowed to stay this fiscal year as opposed to last.
If those statistics were broken down by month, one could better assess whether Biden’s policies boosted the percentage of outcomes in which courts have allowed aliens to stay, as opposed to the percentage in which aliens were ordered deported. Those statistics are strictly year-to-date, however.
There is, however, other data from which to make a better informed assessment.
On April 19, DOJ published statistics on “decision outcomes” in immigration court cases, which covers the first half of FY 2021.
They reveal that during that period, immigration judges issued almost 39,600 decisions in removal cases, of which more than 17,200 were orders of removal, and an additional 2,925 were grants of voluntary departure (which were also included in TRAC’s deportation statistics)—50.9 percent of that total.
On April 19, DOJ also released data showing that in the first half of FY 2021, 578 pending cases were administratively closed.
Adding that data to the aforementioned DOJ data on “decision outcomes” from the first half of FY 2021 shows that as of March 31, there were at most 20,127 cases that would have fallen within TRAC’s definition of “outcomes” in immigration court in which aliens were allowed to “stay” in the United States (grants of protection or relief, terminations, and closures).
That means that half of TRAC’s total “stay” outcomes for FY 2021 through May 31 (40,335) were issued during the second and third full months of the Biden administration.
Plainly, therefore, the Biden administration’s anti-enforcement policies, as delineated in the Pekoske and Johnson guidance, significantly boosted the percentage and number of aliens who were allowed to “stay” this fiscal year, as opposed to being ordered deported or being granted voluntary departure—even before the Trasvina guidance was issued.
To explain how that would have occurred, it is important to understand that, traditionally and appropriately, “prosecutorial discretion” is exercised at the request of a specific alien on an ad hoc, case-by-case basis, in particularly deserving or exceptional cases.
The Biden DHS/ICE guidance makes clear, however, that this administration’s definition of a “particularly deserving or exceptional” case is much different than it was under Trump’s.
Given that Biden’s new DHS leadership started signaling its intentions for immigration non-enforcement on day one, hundreds if not thousands of aliens (and more precisely, their lawyers) likely approached ICE after the inauguration to request prosecutorial discretion-- even though those aliens were removable and not legally able to remain, and even before Trasvina issued his guidance.
Most if not all those requests were likely agreed to. Hence, the marked increase in the percentage of outcomes in immigration court in which aliens were allowed to stay this fiscal year, as opposed to the percentage of outcomes in which aliens were ordered removed.
Trasvina’s guidance will just make the number and percentage of cases in which aliens are allowed to stay even larger. As I explained in a June 28 post, it allows the agency to second-guess any ICE lawyer who refuses to agree to close, terminate, or stipulate to relief in any given case—ironically constraining the “prosecutorial discretion” it purports to promote.
Looking at the TRAC and DOJ data, two things are clear: First, immigration courts are completing just a fraction of the number of cases in FY 2021 that they did last fiscal year. Second, unlike under the Trump administration, the courts are now more likely to allow aliens to stay than ordering them removed. Expect that second trend to accelerate exponentially under the Biden administration’s non-enforcement policies.