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Immigration Court Overcrowding: Prelude To Prosecutorial Discretion

– Posted in: Immigration Court

In August 2010, ICE Director John Morton recommended expanding the use of prosecutorial discretion in all phases of immigration law.

Following loud public criticism, these ideas quickly disappeared.

In June 2011, Morton suddenly renewed his efforts.

This led to the creation of a joint Department of Homeland Security – Department of Justice task force in November 2011.

The goals of the joint task force are to (a) review all immigration court cases, (b) identify low priority matters, and (c) remove them from court dockets.

However, the administration’s true commitment level remains an enigma.

Conflicting reports about the number of files reviewed and grants of discretion have surfaced, causing observers to wonder if this initiative is simply another political publicity stunt.

The administration, in the view of critics, has not shown a firm willingness to enter the trenches of immigration policy wars.

Deportation And Removal Cases In 2011

Even assuming the administration is sincere about its efforts to expand deferred prosecution, the task force faces a daunting challenge.

Much of the problem can be traced to enforcement activities in 2011.

According to the Executive Office for Immigration Review 2011 Statistical Year Book, immigration courts received 338,114 new immigration cases during 2011.

At present, there are 60 immigration courts and 275 immigration judges. This means, on the average, each judge received more than 1,229 new cases last year.

This overload is one primary reason why low priority cases need to be removed from active immigration court dockets.

Justice cannot prevail in a system plagued with over 100 new cases per month, per judge.

As I explained in A Modern Approach To Deportation And Removal Hardship, the evidence required to defend yourself against deportation at immigration court is set at an extremely high standard.

Proper case presentation, despite courtroom overcrowding, should not be shortchanged due to time constraints.

In other words, the task force’s efforts to streamline the workload of immigration judges is crucial to due process for immigrants.

New Deportation And Removal Cases By Year

  • 2006 – 308,652
  • 2007 – 279,430
  • 2008 – 292,013
  • 2009 – 327,928
  • 2010 – 325,326
  • 2011 – 338,114

In addition to deportation and removal cases, immigration judges conduct hearings involving bond determinations, motions to reopen, motions to reconsider, and other special pleadings.

When these types of short term matters are added to judges’ workload, the number of cases which they must handle increases substantially.

For 2010, including these issues, the combined total of matters handled by immigration judges was 392,888.

For 2011, the combined total rose to 430,574.

Under this set of calculations, each immigration judge was responsible for over 1,565 total new matters in 2011.

New Deportation And Removal Cases By Court Location

As an deportation and removal defense lawyer, I’m surprised by the two courts, Denver and Baltimore, selected for the first reviews by the joint task force.

Neither court made the list of busiest immigration courts in 2011. The Baltimore court picked up 4,229 new cases and the Denver court 7,706 new cases.

Within the next four months, the task force will visit the Detroit, New Orleans, Orlando, Seattle, New York, San Francisco, and Los Angeles immigration courts.

Only the latter three made the 2011 top ten list of immigration courts with the heaviest caseload.

  • Los Angeles, California – 26,483
  • New York, New York – 22,229
  • Chicago, Illinois – 14,819
  • San Francisco, California – 11,249
  • San Antonio, Texas – 10,842
  • Harlingen, Texas – 10,058
  • Miami, Florida – 9,795
  • Dallas, Texas – 9,107
  • Arlington, Virginia – 8,279
  • Eloy, Arizona -8,122

This list only includes immigration courts that primarily handle non-detained cases.

Immigration courts housed at detention facilities or processing centers are not part of the above figures.

2011 Deportation And Removal Decisions By Country Of Birth

In 2011, 68% of the cases completed by the EOIR involved immigrants from just five countries, Mexico, Guatemala, El Salvador, Honduras, and China.

Overall, the top ten countries were:

  • 1. Mexico
  • 2. Guatemala
  • 3. El Salvador
  • 4. Honduras
  • 5. China
  • 6. India
  • 7. Dominican Republic
  • 8. Cuba
  • 9. Jamaica
  • 10. Colombia

Throughout most of the past decade, the top ten countries in this category have remained the same. This provides valuable insight for immigration decision-makers.

For instance, by reforming immigration policy towards just four countries – Mexico, Guatemala, El Salvador, Honduras – the administration could significantly reduce the flow of immigrants entering the United States without advance permission.

2011 Deportation And Removal Decisions By Court Location

  • Los Angeles, California
  • New York, New York
  • Chicago, Illinois
  • Miami, Florida
  • Harlingen, Texas
  • San Francisco, California
  • San Antonio, Texas
  • Dallas, Texas
  • Eloy, Arizona
  • Arlington, Virginia

2011 Deportation And Removal Decisions By Representation

I have long cautioned individuals, as a San Bernardino immigration attorney, about the perils of fighting deportation without the help of an attorney.

Historically, 57% of immigrants have tried to handle their immigration court cases without a lawyer.

In 2011, for the first time, the number of immigrants going to court with an immigration lawyer exceeded those trying to handle their deportation matters on their own.

  • Represented (51.2%)
  • Not Represented (48.8%)

Of course, if all types of immigration matters were included, the percentage of unrepresented immigrants would be significantly higher.

Moreover, in 2011, EOIR changed how they calculate represented and unrepresented immigrants.

Prior to 2011, they counted each hearing separately. If an immigrant appeared at three hearings without an attorney and then showed up with a lawyer for two hearings, he was shown as unrepresented at 60% of his deportation hearings, as well as represented at 40% of his hearings.

Under EOIR’s new formula, if an immigrant is represented by an attorney at any hearing, he is considered to have been represented. This is true, even if, at all other earlier hearings, no attorney was present to represent him.

The change in formula deceptively inflates the number of immigrants represented at immigration hearings.

2011 Board Of Immigration Appeals Decisions

For many immigrants, the BIA is the court of last resort. This is where those who have lost their immigration court cases challenge the judge’s ruling.

In 2011, 17,090 new immigration appeals were filed at the BIA.

At the end of the year, the Board had a total backlog of 30,350 cases.

Over 90% of adverse immigration court decisions are never challenged.

By , Immigration Law, Policy, And Politics