Allow me to engage in a little unabashed, albeit educated speculation on a topic with large implications for the perception of our immigration courts. Since this post contains a wordy preamble, let me reveal the apotheosis up front: the share of cases before the immigration courts that result in deportation orders is down sharply, by a third, a rather stunning development. Less surprising: we do not know why.
So with that…
In Passaic, I have explored the many facets of immigration law and practice as they apply to real people, be they documented or not. Indeed, the subject of the narrative thread of my book was the holder of a green card until it was seized from him by the Immigration and Naturalization Service, the predecessor agency to Immigration and Customs Enforcement (ICE).
One of the issues that emerges in my book as critical to the discussion of immigration detention and removal is the glaring lack of judicial discretion afforded immigration judges under the current immigration enforcement code. Over the last several decades, there has been a movement afoot that postulates that judges in general are so prone to leniency that the latitude they possess for setting penalties must be controlled by the legislature through devices such as tight sentencing guidelines in criminal court. Still, federal and state judges working within the judicial branch retain their overall independence under Article III of the Constitution. Not so with immigration judges who report to the executive branch and can be dismissed administratively. Add to that the especially strict boundaries on judicial discretion imposed by immigration law under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and candidates for removal have seen the deck stacked against them in immigration court before uttering a word in their own defense. And that is even before we consider other impediments to relief such as the absence of a right to counsel and the notorious ineffectiveness of attorneys hired and compensated by the families of immigrants in deportation proceedings. (Pro bono lawyers are noticeably more successful in removal hearings than attorneys retained for cash by respondents.)
In the dozen years since 9/11, the immigration courts have tended to be stern in their application of the sections of the current immigration code governing deportation, heeding the uncompromising commands of IIRIRA. While, the thesis of my book, Passaic, finds much to deplore in our detention and deportation apparatus, IIRIRA’s stripping of the judicial discretion granted to immigration judges percolates to the top of the list, all the more so that it would be easy for Congress to fix the problem. Indeed, the immigration reform bill passed by the Senate (S. 744) contains a modest expansion of judicial discretion powers for immigration judges.
What, you might ask, do I mean by judicial discretion? Under IIRIRA, the cause to effect trigger is remarkably wide in deportation hearings, i.e., a fixed and rather long list of circumstances result in automatic deportation without the possibility of relief. As a result, the judge’s task is reduced to determining whether evidence presented by ICE is “clear and convincing,” to use the language of the code concerning burden of proof. In short, the immigration judge issues a ruling on the facts, and their consequence is formulaic: if the respondent is deportable, off he or she goes. The judge has no discretion to modulate the penalty. He or she is expected to serve a single interest of the state: public order (as imagined by Congress in 1996), to the exclusion of other recognized interests such as family integrity or child protection. The same, one might argue, is largely true in the criminal justice system, but there is a huge difference: immigration courts are CIVIL, not criminal tribunals and should be sensitive to the web of consequences of their rulings.
The current rules are also designed to block avenues to hardship-based cancellation of removal with an almost Machiavellian logical construct: to qualify for relief, an applicant must demonstrate hardship that is both extreme and exceptional. One would think that forced separation of a parent from a child left with no means of survival, for example, might rate as a reason for considering relief, unless the deportable parent was a depraved or violent felon, in which case the public order prerogative would prevail. However, since ICE has deported many, many aliens with dependent children and, at most, trivial police records, the fracturing of a family is, per force, unexceptional and, therefore, not grounds for relief.
So that’s the legal backdrop. Combine it with the history of American political and official attitudes in the decade following 9/11. A fear of terrorism driving phobia of the other, particularly if the other is of swarthy complexion. A conservative political faction equating immigration with a security threat to the point of quashing any movement toward reform even within Republican ranks. An administration, heeding the calls for muscular, militarized immigration enforcement. The absorption of immigration enforcement by the Department of Homeland Security. A severe economic crisis exacerbating already stagnant middle class incomes and further fueling anti-immigrant sentiment readily exploited by politicians. Now consider that immigration judges report to bosses in the executive branch with the power to hire and fire them, and it should come as no surprise that their rulings have reflected the policy emphasis of their employer. For a full decade that emphasis was on enforcement, particularly during the Bush years when so many of the current cadre of immigration judges was first appointed, and rulings by them that smacked of leniency attracted disapproving scrutiny.
This potion composed of enforcement-centric statutes and policy, constrained autonomy of immigration judges, inadequate legal representation for respondents and xenophobia-inducing economic circumstances produced a predictable record in our immigration courts: a vast skew toward deportation rulings and a relative scarcity of cancellations of removal by immigration judges. From 2000 to 2011, the likelihood of the government winning confirmation of deportation orders remained stubbornly higher than 70%, reaching 80.5% in 2005, mid way through George W. Bush’s presidency, and 76.5% in 2009, the first year of Barack Obama’s. Now, here is the shocker (in a good way). According the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, which collects and compiles immigration data (among other things), the likelihood of government prosecutors winning their cases in immigration court has dropped to 50%.
I cannot stress enough how remarkable this is. (For one thing, it begs the question of how fair immigration judges thought they were being in their rulings over the last decade.) I would like to know the cause behind the effect. Since there is no obvious one – in particular, there has been no softening of the law – one is naturally drawn to speculate. I will try to do so responsibly, by examining the possible sources of the shift in court outcomes.
Let’s start with the docket. The number of cases pending before the immigration courts has almost doubled since September 30, 2008, to over 360,000 at the end of January 2014, including an estimated 37,000 additions to the backlog from the 2013 government shutdown. (The reference date on 9/20/08 I have chosen is the end of the last fiscal year before Obama took office.) Over half the backlog is in 3 states, California, Texas and New York. One could reasonably ask if the decrease in prosecution success has been concentrated in states that have exhibited more official compassion toward immigrants in the past five years, in which case, California and New York might show a more pronounced relative decline in deportation orders. That does not appear to be the case. The immigration courts located in Texas are less forgiving in absolute terms, but the trend away from dominant prosecution success has been similar. So, the regional mix in the backlog does not appear to be a driving cause of the change in court outcomes. Tightly correlated to the backlog is the number of days pending removal cases have been tied up in court. These wait times have been drifting upwards for the last five years, and stand at 533 days. Combined with the absolute size of the backlog, this trend would logically create some incentive for the courts to try to accelerate disposition of the cases before them. One could conceivably deduce – with only moderate confidence in the deduction – that judges might be more inclined to dismiss a prosecution rather than wait for the government to press its case in borderline situations. I’ll be the first to acknowledge the speculative nature of this reasoning, especially since burden of proof in immigration court tends to fall to the defendant. Still, worth considering.
OK, I am skating on thin ice (no pun intended), I realize that, but I am trying to cover all imaginable explanations for a rather large unexplained phenomenon. So before I get to the non-mechanical possibilities, let me ponder one more technical one. In mid 2012, President Obama, in a delayed response to the rather scandalous inaction by Congress on the Dream Act issued a memorandum applying prosecutorial relief for immigrant youth by deferring action against them by ICE. The program is known as DACA, Deferred Action for Childhood Arrivals; it was met by howls of righteous indignation by Republicans, but that was before the 2012 election prompted them to consider the consequences of reflexively crying wolf. DACA falls short of the proposals of the Dream Act, since only Congress can enact changes in the actual immigration code to authorize cancellation of removals for a class of immigrant. The presidential action only defers them by de-prioritizing cases against those who are eligible under the program. The rules do permit individuals already in immigration proceedings – and therefore tabulated in the docket backlog – to apply. One could be tempted to imagine a dampening in the zealousness of prosecutors pressing for the removal of immigrants eligible for DACA relief, resulting in more favorable immigration court outcomes, since removals in these cases would not be implemented by ICE. Again, highly conjectural as there is no mechanism that would allow a judge by virtue of the DACA program to dismiss a case already before the immigration court, nor could there be legally. Also, the slide in adverse court decisions began before Obama’s 2012 DACA initiative.
Now for the fun stuff. In Passaic, I detail how the immigration judges have been in thrall to the executive power that appoints them and allows them to keep their jobs (or not). The result over more than decade has been a record of fealty of immigration judges to the policy preferences and directives of the federal administration, beyond the habitual deference shown to law enforcement in American courts of all types. In the decade following 9/11, official policy was to apply IIRIRA energetically, and judges were expected to strictly adhere to an uncompromising interpretation of the statutes, which do not provide much wiggle room to begin with. While judges’ discretionary latitude was, and remains, narrow under immigration law, they could still rule on the validity of the factual evidence presented by immigration prosecutors. Between the structural incentives to favor the government’s arguments in removal cases, the political pressures to impose harsh enforcement and the barriers to effective legal representation for defendants, the granting of relief to deportation candidates has been, until recently, relatively exceptional. The immigration judge who dismissed the government’s case for lack of convincing evidence could be in for some second-guessing, either from the boss or extraneous pressure groups. (Believe me, it has happened.) Add to the mix the fact that anti-immigrant politicians had the bullhorn fully in hand right through Obama’s first term, and the high rate of immigration convictions appears unremarkable. But times have changed. True, the pace of deportations has not slowed under Obama (partially a backlog effect) and the administration deployed the Secure Communities policy with curious abandon for a period of time. However, the tone has undeniably changed with Obama strongly favoring reform, and hostility toward immigrants in the body politic has abated, notwithstanding conservatives neglecting to read that memo sitting in their inboxes. So, how much of a stretch is it to imagine immigration judges now emboldened to challenge the evidence and arguments presented by government prosecutors when official policy, public opinion and the failure of anti-immigrant state legislation have led to greater tolerance? Logic seems to dictate that judges should be proportionately less hesitant to rule against government prosecutors when the climate in which they perform their duties is less threatening and restrictive.
I hope we do get answers, sooner rather than later, since there are definite ramifications for the role of the immigration courts in the future, to the extent that they can be seen as functioning more independently than in the past and setting the shape of lasting autonomy to come. If I were to take an educated guess – and that is exactly what I am doing – the root of the shift in immigration court outcomes contains elements both numerical (the immense backlog) and atmospheric (the changing perception of immigration in American society).
That’s the good news.
There is, however, a flip side to the trend: it is reversible.
Incontestably, part of the positive change in attitudes toward immigration has legs. Younger Americans are less inclined than their elders to view immigrant neighbors, schoolmates and colleagues as alien, or to feel hesitant to associate with them socially or, often, romantically. We see a parallel liberalization of temperament with regard to gay rights. Also, the already mythical menace of overpopulation to our south feeding a northward push across the border is confronting an ever more flagrant demographic reality: with birth rates in Mexico now roughly equal to ours, the age cohort contributing to migrant labor, including undocumented entry, is poised to decline. By a lot. The argument that we are facing some kind of alien invasion will ring even more hollow than it already does, and a few of those heretofore seduced by the anti-immigrant sabre rattling of not so long ago are bound to notice.
Still, not to rain on the parade or stop batons from twirling, history shows us that xenophobic proclivities are a cyclical phenomenon. So much so that anti-immigrant rhetoric and the rush to restrictive (and breathtakingly unconstitutional) state legislation and local ordinances spiked even more strongly in the 2010 depths of the last recession than in the wake of the terrorist attack of 9/11/2001, which also witnessed the bursting of the tech bubble and an economic slump. The anti-immigrant impulse was all the stronger that the recent recession was severe, and recovery from it was both long in coming and held back in amplitude by fiscal austerity. But there’s more evidence of cyclicality in attitudes toward immigration. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was passed by Congress in September 1996. GDP growth in 1995, the year preceding passage had slowed. True, absolute growth was still 4.3%, a rate we would be delighted with in today’s perverse economic climate, but that represented a 2-point drop from the prior year. At the same time, the Mexican economy was in absolute free fall, with a drop in GDP in the corresponding period of a full 6% and a frightening spike in poverty in 1996. (Of course, Mexico is far from the only source of immigration, but it is arguably the most visible.) So, the overall economic context was more conducive to the restrictionist sentiment behind IIRIRA than not.
The moral of this story is that while we can point to seemingly permanent trends with the hope that xenophobia is on a path to becoming unacceptable to the collective American psyche, the cyclical component in our national ambivalence toward immigration is very strong. It has been buttressed by a tradition of conformity to a social norm promoting an image of the true American as the kind of person you might view in pickup truck commercials, downhome country twang and all. Yes, the norm has softened from brazen nativism to a kind of we-got-here-first-ism, but the remnants of exclusion are still there. Unlike immigration liberals, restrictionists have current law on their side, reaffirmed in IIRIRA, as well as over a century’s worth of legislative history that has stroked the ambivalence of which I speak and contains vestiges of some very shameful episodes in our history. Add to the legislative handicap the powerful sway of economic cycles over immigration policy and we find ourselves on brittle ice, notwithstanding the encouraging signs from our immigration courts.
It is a wonderful thing to observe immigration courts more attentive to those who appear before them and whose very lives are in their hands, assuming that is indeed what the decline in prosecutorial success reflects, in whole or in part. But nor can we, in our exuberance, ignore the cyclical nature of our national temperament when it comes to immigration, the Sword of Damocles hovering over immigration policy, which only Congress can remove. Now is a great time for reform. The gravest threat to it is a cycle that can turn against it when times get rough again, as they will.