Deportations Decline Following Policy Change

The first quarter of the 2012 fiscal year saw the lowest proportion of deportations in immigration cases in at least two decades. At the same time, the proportion of aliens allowed to remain in the U.S. also increased.

According to a recent report, immigration court records for 53,064 completed cases showed that only about half or 50.8% of the individuals with deportation cases were removed. Compared to the preceding quarter, the period of October to December 2011 saw a decrease in the percentage of aliens ordered removed by more than 5 percentage points.

Not only were there fewer deportations in proportion to the number of cases. Substantially more cases were also closed without a deportation or voluntary departure order, which essentially means that the respondent alien was allowed to stay in the United States. According to the study, in 18,266 cases (34.4%), the court granted relief to the alien, terminated the case, or administratively closed the proceedings.

This is significant because it indicates that more than one in every three aliens in deportation were allowed to remain in the U.S., which is considerably greater than the previous quarter’s 29.9% and is the highest ever recorded.

More striking was the jump in the percentage of aliens granted relief or found to be legally entitled to stay in the U.S. Whereas in the previous quarter the court granted relief only in 13.1% of the cases, for October-December 2011 relief was granted in almost 18% of the cases.

These notable changes could be the result of a number of policy changes implemented by the Obama administration last year.

It will be recalled that on June 17, 2011, the Immigration and Customs Enforcement issued a Memorandum directing its personnel to exercise prosecutorial discretion with the aim of conserving the agency’s resources for cases deemed to be enforcement priorities, such as those involving criminal aliens and suspected terrorists.

Then in November 2011, the DHS announced a two-month long review of incoming as well as pending removal cases to determine which cases should be accelerated or prioritized and which ones should be administratively closed using the guidelines on prosecutorial discretion. The DHS also launched a scenario-based training for ICE officers and attorneys as well as pilot programs to review the dockets in immigration courts in Denver and Baltimore.

The report was released by the Transactional Records Access Clearinghouse (TRAC), a research group based at Syracuse University.

It comes at about the same time that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the Department of Justice in five separate immigration cases to advise the court by March 19, 2012 “whether the government intends to exercise prosecutorial discretion”. It’s as if the court has taken to itself the initiative of prioritizing the use of government resources by focusing on more important cases before it.

Out of the 53,064 cases analyzed by TRAC, 82.1% or 43,591 cases involved the violation of immigration rules only, i.e., those who entered the country illegally, overstayed a valid visa, or violated procedural requirements. In the remainder of the cases the charges against the alien included more serious offenses, such as involvement in or conviction for a crime.

It seems that the data confirms that the increase in the proportion of aliens allowed to stay – those who were granted relief or whose cases were terminated or administratively closed – pertained to aliens who were charged only with a violation of immigration rules.

On the other hand, among aliens charged with criminal violations, there was a slight increase in the percentage of those ordered removed or granted voluntary departure.

The study also found however that, in spite of the increases in case closure or termination, for the first quarter of fiscal year 2012, the average processing time went up from 311 days on average in the last fiscal year to 375 days.