The AG Should Take Another Overdue Step to Oblige Compliance with Immigration Court Orders

By Dan Cadman on September 4, 2018

My colleague Andrew Arthur has posted a series of excellent blogs outlining the various steps that Attorney General (AG) Jeff Sessions has done to right the ship of state where oversight of the immigration courts is concerned. (See, e.g. here, here, and, most recently, here.)

The AG exercises supervisory authority over the courts because they, and the appellate tribunal for immigration cases (the Board of Immigration Appeals), are housed within the Executive Office for Immigration Review, which is a Justice Department agency.

The actions he's taken to instill a modicum of rigor in the besieged and nearly overwhelmed immigration courts — plus other actions he's taken, such as cutting off grant funds for sanctuary jurisdictions (now working itself through the courts as a result of the inevitable legal challenges, which will no doubt require resolution at the Supreme Court) — have made Sessions one of my favorite AGs in recent years, notwithstanding various negative presidential tweets.

When I use words like "besieged" and "nearly overwhelmed", I'm not engaging in hyperbole: Syracuse University's Transactional Records Access Clearinghouse reported recently that the backlog in the immigration courts has hit record highs:

As of July 31, 2018, pending cases in Immigration Court nationwide reached nearly three-quarters of a million (746,049 cases). This is a 38 percent increase compared to the 542,411 cases pending at the end of January 2017 when President Trump took office.

To date, most of the AG's exercise of oversight has been by means of certifying to himself certain cases winding their way through the administrative appeals process, to ensure that EOIR judges and appellate board members follow the guidance that's laid out when he decides those cases.

But there is another arena in which the AG can both help to curtail the rising backlog and at the same time ensure that when decisions are made ordering an alien's deportation, they actually get enforced — and he can do this simply by issuing policy memoranda. The arena I'm speaking about has to do with the routine practice of immigration judges "reserving decision" at the conclusion of the actual proceeding, followed some time later (often a significant amount of time later) by a written decision issued to the alien, his counsel, and the government. This happens most often in non-detained removal cases, which constitute the vast majority of immigration hearings.

There are two aspects of this practice that deserve scrutiny.

Reserving Decision. Sometimes, when an alien presents a highly sympathetic picture to the judge, but transparently lacks any legitimate entitlement to relief from removal, the judge will nonetheless "reserve decision". Often the straw the judge grasps at is an application for relief that, if not downright specious, is the next thing to it. This allows the judge to pronounce that he or she will be reserving decision to ponder the application, and then simply bury the case in a stack of files because he or she is reluctant to order the inevitable outcome of deportation because the alien is sympathetic. While this is entirely understandable from a human point of view, it is a systemic wrong.

Imagine a criminal court judge announcing that he will pronounce sentence at some undefined date in the future who then, because the defendant is sympathetic and he doesn't want to be the one to put the hammer down, simply tries to ignore it for as long as possible. No system of due process can long survive when judges allow their feelings to intervene in the outcome of cases that must in the end be decided by the dictates of law.

The fix to this one seems easy enough: Require by policy that judges must issue reserved decisions within a fixed period of time (say 30 or 60 days) and then ensure that the automated system that tracks immigration court cases flags those that are coming up on — or have exceeded — the time frame. If a pattern develops, then the immigration judge's superiors must be made aware and take corrective action.

Notice of Adverse Decisions. Once the decision that was "reserved" in open court has been made and reduced to writing, present practice is to simply mail it out to the parties. The consequence of that is profound: If an alien receives in the mail (or is advised by his counsel of) an adverse decision denying relief and ordering removal, it happens in the privacy of his home or the lawyer's office.

That process buys the alien a significant amount of run time in which to abscond. While an alien may have dutifully appeared in court each and every time required up until then — after all, who wouldn't, as long as there is the possibility of being able to remain permanently and legally? — once an adverse decision has been issued, there is absolutely no incentive to sit around waiting until told by immigration agents to pack up your stuff and appear for X or Y flight for deportation, or for the agents to appear at your door. Instead, at this juncture many aliens simply disappear into another part of the country to continue living and working illegally as they were before first apprehended. Why not? The worst that can happen is that you will be found someday and forced to do what you've already been told you must: Go home.

The statistics tell the story powerfully. There are hundreds of thousands of aliens on the streets of American cities at this moment who have absconded from their hearings and who are considered fugitives by Immigration and Customs Enforcement, the Homeland Security agency charged with enforcing their actual, physical removal from the United States. (For one insight into the weakness of enforcing compliance with removal orders issued by the immigration courts, see Mark Metcalf's CIS Backgrounder, "Justice on the Run: Immigration court evasions reveal weak authority and weak enforcement".)

So the solution to this problem, in the immigration context, is once again to emulate the criminal court system. The AG should issue policy guidance stating that when an immigration judge reserves decision and later reduces it to writing, the decision cannot be mailed or disseminated in advance. Instead, the judge must convene a hearing at which both the alien and the government are obliged to attend in order to find out what that decision is.

In this way, if the decision is to deny relief, the government has the opportunity to consider whether the alien should at that moment be taken into custody to ensure his or her presence for removal. After all, a prime condition of release is the likelihood of flight — and when the immigration judge has just ordered removal, an alien is clearly a heightened flight risk.

And if an alien doesn't even show up to find out the judge's answer to any requests for ancillary relief, that should send a powerful message to the judge about the propriety of such relief if that's what he or she had in mind.