- The Washington Times - Monday, August 23, 2021

Congress is starting work on legislation to legalize illegal immigrants, but the Biden administration is already working on what some analysts have termed a “silent amnesty,” which would quietly suspend or dismiss thousands of deportation cases pending in immigration courts.

Deportation orders, as a percentage of decided cases, have plummeted to 35% from January to June. That is about half the rate of 2019 and 2020 under the Trump administration.

The number of case terminations has surged even though immigration judges are deciding fewer cases.

Sources within the Justice Department, which oversees the judges at the Executive Office for Immigration Review, said judges are granting continuances in a large swath of other cases, paving the way for termination.

“They’re dismissing these cases out of hand, and then ICE is releasing these people from custody,” said one department source who spoke to The Washington Times on the condition of anonymity.

Terminating or dismissing a case clears it from the active docket, giving migrants de facto permission to remain in the country even though they do not hold legal status.

Immigration courts don’t get as much attention as the enforcement agencies at the Department of Homeland Security, Customs and Border Protection and Immigration and Customs Enforcement. But immigration judges are critical components of the system. They handle cases such as asylum claims at the border and deportation for those caught inside the country.

But the courts are struggling to fulfill their role.

• Unaccompanied alien children, or UACs, are mired in the system for years. The latest statistics show the median UAC case has been pending for 1,025 days — or more than three years. That means half of the cases have been waiting longer. The median time to complete a UAC case is 1,653 days, or about 4.5 years.

• Immigration judges are averaging just 132 case completions a year. A government employee is supposed to be on the job 200 days or more a year, which works out to less than one case completion a day. “Even with the changes due to COVID, that’s absurd,” said one department source.

• The Biden administration has filed just one document fraud case with the Office of the Chief Administrative Hearing Officer. In 2020, the Trump administration filed 18 cases.

The case closures are joint efforts by the Justice Department and Homeland Security, which oversees the ICE attorneys who prosecute the cases and, increasingly, are agreeing to the delays and dismissals.

ICE declined to answer questions about its attorneys’ handling of cases and referred inquiries to the Justice Department, which did not provide answers to The Washington Times’ questions.

At this point in fiscal 2019, immigration judges had completed nearly 177,000 cases and ordered removals in more than 122,000 of them, or about 69%. Last year, the judges had completed more than 205,000 cases and issued removal orders in more than 152,000 of them, or about 74%.

So far this fiscal year, judges have completed only about 63,000 cases and ordered removals in slightly more than 25,000, or about 40%. Subtract the first three months of the fiscal year, which fell under the Trump administration, and the rate drops to about 35%.

Despite completing only about a third as many cases as last year, the number of terminations and dismissals is up from about 17,000 last year to more than 23,000 this year. They account for 37% of all decisions, up from 9% last year and 6% in 2019.

Grants of relief, issued when the judge agrees with the immigrant’s request, have ticked up from about 10% last year to 17% so far this year.

One source told The Times that judges are under pressure to complete the easiest cases and put off tougher cases such as asylum claims.

Jeremy McKinney, the president-elect of the American Immigration Lawyers Association, said judges’ decisions have changed for two reasons: the pandemic and the availability of lawyers.

He said the caseload has changed as a result of COVID-19. Judges chiefly move forward with cases in which migrants have attorneys and are eligible for relief from deportation, which is why so many fewer cases are ending with removal orders.

“The increase in dismissals and administrative closures is also a reflection of the reality that hundreds of thousands of removal matters are eligible for a legal immigration benefit before a different agency, such as USCIS and DOS,” Mr. McKinney said in an email. 

“Implementation of the current administration’s common-sense immigration enforcement priorities are shifting those cases away from prolonged litigation and towards resolution through established paths of legal immigration,” he said.

Andrew “Art” Arthur, a former immigration judge and now a resident fellow in law and policy at the Center for Immigration Studies, pointed to a May memo from John D. Trasvina, the principal legal adviser at ICE, who urged the agency’s attorneys to use prosecutorial discretion to curtail deportations.

Mr. Arthur, in a commentary piece last month, said prosecutorial discretion traditionally was requested by immigrants’ attorneys. He cited an exceptional circumstance.

“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,” Mr. Arthur wrote.

“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.”

A coalition of immigration lawyers urged just that course of action.

“If your client is subject to any of the enforcement actions mentioned above, or your client is in removal proceedings, and you believe that your client is not an enforcement priority under the new DHS and ICE guidance or merits prosecutorial discretion for another compelling reason, you should make a formal, written request for prosecutorial discretion as soon as possible, regardless of the stage of the case. Additionally, alert ICE to your intention to do so,” the groups said in a March memo to lawyers.

Mr. Arthur said prosecutorial discretion is supposed to mean what it says: discretion of the government’s attorney. But he predicted that ICE leaders will be second-guessing lawyers who tend to reject requests.

Mr. McKinney, though, rejected suggestions that the administration’s directives to judges have changed the outcomes. He said the judges are the same people in place during the Trump years.

He did say the Biden administration can shape outcomes in the longer term.

Mr. McKinney said those who are worried about that prospect should join AILA and other lawyers groups advocating that the immigration caseload be shifted to what is known as an Article I court, which is separate from the Justice Department.

“Our organizations are for a fair process of law, as free from political influence as possible,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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