New York Times
By Julia Preston
April 16, 2014
New deportation cases brought by the Obama administration in the nation’s immigration courts have been declining steadily since 2009 and judges have increasingly ruled against deportations, leading to a 43 percent drop in the number of deportations through the courts in the last five years, according to Justice Department statistics released on Wednesday.
The figures show that the administration opened 26 percent fewer deportation cases in the courts last year than in 2009. In 2013, immigration judges ordered deportations in 105,064 cases nationwide.
The statistics present a different picture of President Obama’s enforcement policies than the one painted by many immigrant advocates, who have assailed the president as the “deporter in chief” and accused him of rushing to reach a record of two million deportations. While Mr. Obama has deported more foreigners than any other president, the pace of deportations has recently declined.
The steepest drop in deportations filed in the courts came after 2011, when the administration began to apply more aggressively a policy of prosecutorial discretion that officials said would lead to fewer deportations of illegal immigrants who had no criminal record. In 2013, the Department of Homeland Security opened 187,678 deportation cases, nearly 50,000 fewer than in 2011.
At the same time, the share of cases in which judges decided against deportation and for allowing foreigners to remain in the United States has consistently increased, to about one-third in 2013 from about one-fifth in 2009.
In the polarized debate over immigration, the court figures do not suggest there has been any wholesale retreat from enforcement by the administration, as many Republican lawmakers contend. Rather, more immigrants are seeking lawyers and fighting deportations, leading to longer and more complex cases for immigration judges to weigh.
The number of deportations ordered by immigration courts is only a portion of total deportations in a given year. But the lower numbers from the courts contributed to a drop in overall deportations in 2013, when enforcement agents made 368,644 removals, a 10 percent decrease from 2012. Also, some deportations that judges order — for example, if the foreigner becomes a fugitive — may not be carried out.
In addition, since 2011 the administration made a major shift in enforcement geography, sending more agents and resources to the Southwest border to quickly remove immigrants caught crossing illegally. Many deportations at the border do not go through the immigration courts.
The figures are from the latest yearbook, through fiscal 2013, of the Executive Office for Immigration Review, the branch of the Justice Department than runs the immigration court system. By a peculiarity of American law, the immigration courts are in the executive branch, not the judiciary. But court officials are not responsible for enforcement policy or for bringing immigration prosecutions, which are handled by the Department of Homeland Security.
The substantial drop in new deportation cases has contributed to an overall 20 percent decline since 2011 in new matters coming before the long-overburdened immigration courts, the figures show. Deportations, known in legal language as removals, accounted for about 97 percent of the new cases received by the courts last year.
But the slowdown in new cases has not eased the vast backlog in the courts, which increased to 350,330 cases at the end of fiscal 2013, up from 298,063 cases at the end of fiscal 2011.
Court officials said the apparent paradox of a shrinking new caseload coinciding with a swelling backlog was primarily a result of the severe budget cuts, known as the sequester, imposed by Congress last year, which prevented the courts from hiring judges and support staff. The reduced corps of judges could not keep up with the new cases, much less dig into the backlog, court officials said.
“Sometimes the bleeding was quite profuse,” said Juan Osuna, director of the office that runs the immigration court system. “Not only were we not able to hire new judges, we were not able to hire to backfill for those who retired.”
The number of judges in the nation’s 58 immigration courts fell to 251 at the end of last year from a peak of 272 three years earlier.
Homeland Security officials said the court statistics reflected their efforts to focus on deporting convicted criminals, foreigners posing security threats and recent illegal border crossers.
“The administration has taken a number of steps to focus our resources on those priorities,” said Peter Boogaard, a department spokesman. He said “the exercise of prosecutorial discretion” had led enforcement agents and visa officials to file fewer deportation charges.
Deportations were further reduced by a big increase since 2011 in cases that were suspended, often by agreement between Homeland Security prosecutors and judges. Under the prosecutorial discretion policy, administration officials said they would offer suspensions to clear the court docket of low priority cases involving immigrants with no criminal records who had families in the United States.
The number of case suspensions rose to 32,454 in 2013 from 6360 in 2011, an increase of more than 400 percent.
Mr. Obama has asked Homeland Security Secretary Jeh C. Johnson to review the enforcement strategy to come up with what he called a more humane policy. Mr. Johnson has been meeting with lawmakers, advocates and religious groups to hear their often impassioned criticism of the current approach.
The new court statistics do not include any description of foreigners facing deportation, such as their criminal histories.
The figures do reveal that more of them are battling their cases and coming to court with lawyers versed in the intricacies of immigration law, which Mr. Osuna hailed as a positive trend for the system. In 2013, 59 percent of cases involved lawyers, compared with 35 percent in 2009.
But Mr. Osuna said the workload for judges had become overwhelming. “Many courts are bailing water as quickly as it’s coming in,” he said.
Court backlogs can discourage foreigners living in the country illegally from trying to fix their status through the legal system, and encourage migrants in deportation proceedings to vanish during long waits.
For the new yearbook, officials said they used a different method to analyze their data on the courts’ performance, designed to make it easier for the public to track the numbers of individual cases moving through the system. The new statistics cannot be compared with past yearbooks, officials said, but they went back to apply the new method to all data since 2009.
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