TRAC, Once Again Cutting Sign in the Wrong Direction

By Dan Cadman on November 3, 2017

Many times in the past I've written of my ambivalent feelings about Syracuse University's Transactional Records Access Clearinghouse (TRAC). (See here, here, and here.)

I deeply admire their tenacity in obtaining statistics and airing them for public view and examination, but I loathe their barely concealed bias in favor of aliens and against the rule of law, which frequently enough manifests itself in shallow or flawed analyses of the data they present, often skewing it in a way that is designed to make government enforcement efforts look ineffectual or callous. But sometimes their efforts simply render their own analyses as facile.

In many ways, this is the epitome of irony. TRAC was obliged to push extremely hard against the Obama White House's propensity toward obliquity and deception. Whole areas of information previously available to the public (such as approval vs. denial rates for various immigration benefits) disappeared during that administration, and many other statistics were simply withheld in an attempt to obscure just how far the federal bureaucracy had been shoved to the left in order to create a new post-national environment in which immigration enforcement and control became reviled concepts. And yet TRAC, which apparently shares the same philosophical bent as the prior White House, at least where immigration and open borders are concerned, doesn't seem to comprehend exactly how far that administration went to hide and deceive.

The latest chapter in the book of flawed analysis comes with TRAC's announcement of a new report: "Immigration Court Filings Take Nose Dive, While Court Backlog Increases". Here's what they have to say:

Preliminary figures based upon case-by-case court records as of the end of September 2017 indicate that the pace of 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 this same period.

There were also increasing delays at DHS before NTAs, once issued, were actually filed in Immigration Court. This backlog of un-filed NTAs helped obscure the fall in Trump-initiated cases. Over 75,000 DHS filings in court after January 20, 2017, actually were of deportation cases begun under the Obama administration.

I looked at the same data and, without stretching at all, can put an entirely different construction on what I see.

Let's take the last item first, regarding the backlog of NTAs filed with the immigration courts — NTAs that actually emanated during the Obama administration. I don't think that the filings have taken place to "obscure the fall in Trump-initiated cases". Rather what it reflects is the Trump administration's removal of the barriers that the Obama White House had erected. 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.

Next, let's examine the drop in new filings of NTAs. There are a number of extremely reasonable, and quite probable, bases that explain such a decline. Consider first that under the Obama administration, ICE agents were precluded from using non-court methods to remove aliens from the United States, despite the fact that they are perfectly legal. A reasonable person might easily conclude that the former administration was deliberately attempting to clog the courts, both to defeat prompt enforcement and removals and to force a legislative "fix" via broad-based amnesty.

When I talk about removal methods not involving the immigration courts, I am speaking about due process methods of removal that include expedited removal, expedited removal of aggravated felons, and reinstatement of prior orders of removal for aliens who illegally reenter. (An explanation of these methods of removal, none of which requires a hearing before an immigration judge, can be found in the CIS Backgrounder "Deportation Basics: How Immigration Enforcement Works (Or Doesn't) in Real Life".)

Thus with the Trump administration's decision to lift the unwritten, but very real, bar to using more expeditious removal means that allow ICE agents to avoid further clogging of the courts, it stands to reason that some apprehensions would not show up in the system as NTAs, because NTAs aren't used except when filing charges with the immigration courts.

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.

As my fellow retired colleagues, those who were in the Border Patrol, might say, once again the statisticians at TRAC appear to be "cutting sign" in the wrong direction.