The Biden administration’s more lenient approach to illegal immigration is now showing up in the nation’s immigration courts, where over the final three months of the last fiscal year, judges issued deportation directives in less than a third of cases.
That’s down dramatically compared to 2019 and 2020, under the Trump administration, when 80% of cases resulted in either removal orders or grants of voluntary departure.
Department officials said the numbers are the result of the administration’s push to expand the reach of “prosecutorial discretion,” cutting thousands of migrants loose, even though judges did not rule in their favor. Instead, cooperation between Homeland Security’s lawyers and the migrants has resulted in record rates of cases being dismissed or terminated, which amounts to a tacit OK for those migrants to remain illegally in the country.
The more relaxed approach comes even as a border surge has meant about half a million migrants were caught and released by Homeland Security over the last year. Yet the immigration courts issued only about 40,000 or so deportation orders.
Experts said that mismatch is particularly troubling because it could help entice others to make the illegal journey, figuring they’ll take their chances with the immigration courts.
One source within the department, who has tracked developments but was not authorized to speak publicly about them, said it appeared the new team was “pushing to break the immigration court system.”
As part of the Justice Department’s Executive Office of Immigration Review (EOIR), the immigration courts are the usually unseen backbone of the nation’s immigration consequences delivery system. Immigrants without documentation who aren’t immediately ousted come to the courts for hearings, and the judges render decisions that give teeth to U.S. immigration law.
Cases are prosecuted by lawyers at Homeland Security’s deportation agency, U.S. Immigration and Customs Enforcement.
Changing patterns of illegal immigration over the last decade have put new strains on both ICE and EOIR. The immigration courts ended fiscal year 2021, on Sept. 30, with 1.4 million pending cases, by far the record.
And even as the workload grew, judges completed just 115,000 cases in the fiscal year, the lowest figure in more than 25 years. Some of that is because of the coronavirus pandemic, “but not all of it,” a department official said. The official said there’s been a “complete de-emphasis” on actually completing cases.
“That level of dysfunction is unprecedented at any government agency and should warrant an official investigation,” the official said.
There are also a couple hundred thousand cases that appear to be missing from EOIR’s docket. While about half a million border jumpers were caught and released or transferred by Customs and Border Protection over fiscal year 2021, the immigration courts registered only about 250,000 new cases.
EOIR, in a statement to The Washington Times, said its records reflect the cases, known in government-speak as “Notices to Appear” or NTAs, that Homeland Security has actually filed with the courts. There are “a variety of reasons” why Homeland Security would hold on to the records, EOIR said.
At some point, those NTAs should be registered with EOIR. But for now, that means as bad as EOIR’s numbers seem to be, the reality is even worse, with hundreds of thousands of additional cases that will be added to the agency’s workload once Homeland Security submits them.
“There’s something funny going on there but I can’t put my finger on what exactly it is,” said a second Justice Department source.
Andrew R. “Art” Arthur, a former immigration judge and now resident fellow in law and policy at the Center for Immigration Studies, said he anticipates the Biden administration will respond to that crush of cases by scrapping some cases.
“They’re just going to ditch some cases, they’re just going to focus on the core ones,” Mr. Arthur told The Times. “People who were caught before 2020, a lot of those cases are just going to fall by the wayside.”
He said the government would need to go on a crash course of hiring for new immigration judges just to tread water with that future workload.
Yet EOIR just completed its slowest hiring year since 2017. And the judges aren’t doing much work anymore.
The agency ended last fiscal year with 559 judges, who completed 114,751 cases, or slightly more than 200 per judge. By contrast, two years earlier, 442 judges completed 276,993 cases, or more than 600 per judge.
The Biden administration last month announced it was canceling a caseload target imposed by the Trump administration.
EOIR told The Times in its statement that it is trying to get more judges in the pipeline, with 19 to be added to the ranks this week and to be fully invested next month, once they complete new judge training.
“There are many variables that affect the immigration judge hiring process and it is not unusual for immigration judge hiring rates to fluctuate from year to year,” the agency said.
EOIR is authorized for 634 immigration judges, and the Biden administration has asked Congress to approve money to hire another 100 judges in its 2022 budget.
Overall, the Biden administration’s approach to EOIR has been to try to expunge as much of the Trump legacy as possible.
The agency’s director, a career official, was ousted, and Attorney General Merrick Garland overturned several immigration rulings made by the Trump Justice Department intended to limit iffy asylum claims. Immigrant-rights groups argued valid claims were also being blocked by the Trump-era changes.
And over the summer, ICE issued new guidance urging prosecutors to look for reasons to drop cases.
The results are just beginning to be seen, department sources said.
Of the NTA cases where EOIR rendered initial decisions in 2019 and 2020, judges ordered issued a deportation directive about 80% of the time. In 2021, that dropped to about 40%. For the final three months, when Biden policies were most firmly entrenched, the rate was just 32%.
Cases granted, where the migrant wins his or her claim, have risen slightly. But the real change has been on terminations or dismissals — effectively dropping proceedings and giving a tacit OK for the migrant to remain. Those decisions rose from about 8% in 2019 and 2020 to 42% in the just-ended fiscal year.
Cases that were terminated or dismissed are usually relatively weak, Mr. Arthur said. Otherwise, if the migrants had a strong case, they would insist on their asylum claim fully adjudicated because winning asylum brings a permanent legal status and the eventual chance at citizenship. A termination or dismissal doesn’t bring a permanent legal status, though many will be able to apply for work permits.
EOIR, in its statement to The Times, said it’s not focused on the ratio of deportation orders.
“In the exercise of justice, our adjudicators decide each case, including motions to terminate or dismiss, and requests for voluntary departure, on its merits and in accordance with U.S. immigration law, regulations and precedent decisions, without consideration of how those outcomes feed into aggregate data including the ratio you mention,” the agency said.
The American Immigration Lawyers Association counters has cheered the rising dismissals, saying they often represent cases where those facing deportation had a valid claim to make before a different agency, such as the State Department or U.S. Citizenship and Immigration Services.
A rising rate of dismissals and terminations is part of a “common-sense” approach to setting priorities for enforcement, AILA says.