About a month ago, I wrote a blog about Syracuse University's Transactional Records Access Clearinghouse (TRAC).
In it, I expressed my admiration for the clearinghouse and its daily teeth-pulling work with the administration to obtain data that is being obscured (or downright hidden) from the public by various federal agencies — most especially those in the Department of Homeland Security (DHS) involved with immigration matters.
I noted that the data don't come easily (irony of ironies from an administration that promised us "transparency") and as if to prove that, within days of my blog TRAC announced that it had filed a federal lawsuit against two key DHS agencies, Immigration and Customs Enforcement (ICE) and Customs & Border Protection (CBP), to force compliance with the Freedom of Information Act in providing TRAC with requested statistical information.
But in my blog, I also expressed discomfort with a tendency at the clearinghouse toward editorializing about the data that they put together and release in the public interest; editorializing that seems to show an anti-enforcement bias, and that sometimes reflects a naiveté about how immigration enforcement operations work that skews their view of the data.
As anyone who even cursorily scans my writings must know, I am no fan of the way DHS or any of its immigration agencies are being run at present. I routinely castigate them for any number of things. But fair is fair, so with some reluctance, I find myself once again taking TRAC to task, despite my admiration. The source of my complaint this time is a recently released report, "ICE Success in Obtaining Removal Orders Drops to 50%". The data on which the release is based can be seen here.
The broadcast email that arrived in my inbox announcing the report starts as follows: "Greetings: Immigration and Customs Enforcement (ICE) has had diminishing success in convincing immigration judges to issue removal [deportation] orders. Such orders are now only granted about 50 percent of the time, the lowest level since systematic tracking began more than 20 years ago."
Later, the announcement states "Thus, there is little evidence that DHS has succeeded in doing a better job at screening cases before they reach the court stage. Instead its efforts are yielding diminishing results."
I have looked at the data, and cannot arrive at the same conclusion for a variety of reasons.
It is important, indeed critical, to remember that formal charging documents, known as Notices To Appear (NTA), are not just issued by ICE. They are also issued by CBP officers (Border Patrol agents and inspectors at land, sea, and air ports of entry) as well as U.S. Citizenship & Immigration Services (USCIS) adjudicators when they deny certain benefits. Thus, ascribing the reduced effectiveness rate solely to ICE is statistically and factually inaccurate, unless I am missing something in the data that TRAC has not explained. But what the charts say is "Percent of Individuals Ordered Deported in Immigration Judge Decisions, FY1998-FY2014". If so, then we are looking at immigration court data, not agency-specific data.
We also must remember that a statistically significant percentage of NTAs are issued to aliens who are seeking asylum. The number of asylum claimants has increased dramatically in the past couple of years, as have the number granted that benefit — so dramatically, in fact, that the House of Representatives has held at least two hearings in recent months to examine the phenomenon and ascertain whether the program is functioning as intended or is rife with fraud. Regardless, we must take into account that every time an immigration judge grants asylum or other forms of protection from return (such as withholding of removal, or torture convention relief), it is at the expense of an order of removal. Is this a sign of a screening failure or diminished results on the part of the NTA-issuing agency? I cannot accept that categorization. It is like blaming the police when a jury acquits a criminal defendant.
We must recognize, with specific reference to ICE, that this is in many fundamental ways an agency at war with itself. Even as agents go about their daily job of apprehending aliens and issuing charging documents to have them removed from the United States, ICE prosecutors — at the direction of their political masters — are filing motions in immigration court to have those charging documents dismissed. TRAC itself has documented that phenomenon — nearly 28,000 cases have been closed under the guise of "prosecutorial discretion". There is no reason to believe that those aliens were not deportable; nor that an immigration judge would not have issued a removal order had the cases moved forward in the ordinary course of events. That they did not is evidence of how deeply the philosophical and political motives of this administration have reached into the bureaucracy to undermine the daily job of immigration enforcement, even at a time when there are between 11 and 12 million illegal aliens in our country.
Having raised the question of political and philosophical overreach within the organs of enforcement, it is fair to ask the same question of the courts. This is, perhaps, unquantifiable, but important — especially when we remember that immigration judges are not truly independent: they are employees of the Justice Department and work for Attorney General Eric Holder. How much influence or pressure has been exerted down through the hierarchy of the executive branch and into the Justice Department to ensure that immigration judges wash away cases whenever and wherever possible; or grant relief on the flimsiest of excuses, because this is what their political masters wish?