NYC Immigration Judges Favor Aliens More Frequently

By W.D. Reasoner on October 16, 2012

An interesting item was published in the September 27 edition of Capital (a New York-based online publication), which in my view deserves a great deal more attention that it appears to be getting.

According to the article, "While nearly two-thirds of deportation cases nationwide end in the target's removal from the country, the results in New York City have been starkly different. Here, 74 percent of deportation proceedings this year have ended with the immigrant being allowed to stay in the United States."

Let me repeat that: in New York City, 74 percent of deportation proceedings this year have ended with the immigrant allowed to stay in the United States.

In addition, a line graph of immigration court decisions in New York and nationally presented in the Capital article illustrates that, beginning in 2009, the first year of the Obama administration, the number of stayed deportations began to climb upward noticeably and the number of deportations ordered began to drop more steeply.

For those who don't know, the hearings at which these deportation cases are decided are presided over by immigration judges, employed by the Executive Office for Immigration Review (EOIR), an arm of the U.S. Justice Department. (For more on our broken immigration court system, see my colleague Mark Metcalf's CIS Backgrounder "Built to Fail".

What this means, if one were to take the statistic at face value, is that immigration officers and agents in New York City are making poor decisions in their apprehensions three-quarters of the time. Why else would the judges so consistently rule in favor of the aliens?

While I have been, and will continue to be, a frequent critic of Department of Homeland Security policies under Secretary Napolitano, and Immigration & Customs Enforcement priorities under Director John Morton, my reservations do not extend to the rank-and-file officers who go about their mostly thankless task under Sisyphean conditions, day in and day out. To accept that they are wrong — and apparently only in New York City — in three cases out of four simply beggars belief.

Asked about the anomalous results, Kathryn Mattingly, a spokeswoman for EOIR, is quoted as saying that EOIR "takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities and ensure the quality of immigration adjudications."

Now that's what I call a masterpiece of modern public relations! It apologizes for nothing; it promises nothing; and it explains nothing, while at the same time managing to sound kinda-sorta reasonable and articulate if you don't think too deeply about the words.

Wonder exactly what steps we can expect EOIR to take now that the disparity has been aired? Left to their own devices, my guess would be: zip, zero, zilch, none, nada, bupkis (an interesting word, by the way; check out the etymology — it expresses contempt in a delightfully earthy way). Mostly what they want, I suspect, is for this statistical embarrassment to go away like dinosaurs after a meteor strike, never to be seen or heard from again.

You know, much is made of the fact that whoever is chosen as president in the upcoming election will have a tremendous impact on our society, because his selection(s) to the Supreme Court will help form the direction of that court's decisions. But the same is true — very, very true — on a less exalted level. While the Supreme Court considers, and issues decisions on, some pretty weighty matters, the fact is that they opt to hear very few cases each session, which leaves the bulk of the lower courts' decisions, in the main, intact.

So it is that the administration in power also has a tremendous ability to shape the direction of our society through the selection of judges and officials in the lower courts where the vast majority of cases of every kind are heard. This especially includes the immigration courts, because those judges are selected as a part of the executive branch, by officials of the Justice Department in which they serve. Thus, immigration judges, through their tens of thousands of decisions each year, in a meaningful sense give shape and direction to the future of our society writ large.

In a place like New York City, possessing one of the largest immigration courts in the country, the selection ability is on full display, because turnover is also large. This has given the Obama administration an unparalleled opportunity to put into place judges whose extremely permissive views on immigration mirror the administration's own. It's an important point to make. Most of the critical attention during this administration has focused on its systematic dismantling of effective immigration law enforcement. What we see in this article is a rare window into the way it has also eroded truly independent judicial judgments.

But what about those New York City immigration judges whose tenure preceded this administration? Well, a lot of them are undoubtedly middle-of-the-road, go-along / get-along types who are glad to have their highly paid sinecures and don't want to risk losing them. They remind me of prairie gophers peeping their heads out of their burrows and sniffing the wind to decide if it's safe to come out. You can deride them for their lack of intestinal fortitude, but you can't fault them for being stupid — they know which way the wind is blowing.

This singular statistic deserves a little bit of official scrutiny. Perhaps Rep. Peter King (R-N.Y.), who also happens to be chairman of the House Committee on Homeland Security, will take an interest and find the time to invite EOIR officials from Washington and New York to testify at a hearing and explain it, so that we can all better understand the dynamics of such a glaring anomaly.