A year after the Obama administration announced it would prioritize the government’s resources on criminals when selecting which illegal immigrants to deport, the backlog in immigration courts has swelled to new highs for Texas and the nation as a whole.
Immigration lawyers say the numbers show that the government is not following through on its directive and becoming more efficient with deportation proceedings, but federal officials say that the figures aren’t telling the whole story.
Federal data compiled from the Transactional Records Access Clearinghouse, or TRAC, a data research and distribution organization at the University of Syracuse, shows that through June, more than 314,000 cases awaited a resolution nationally, a 5.6 percent increase from 2011 and a 20 percent increase from 2010. Immigration courts in Houston and San Antonio represent Texas’ largest dockets, with 11,390 and 9,220 cases pending, respectively. That is followed by courts in El Paso and Dallas, which have 6,380 and 4,915 cases pending, respectively.
The data shows that Texas ranks third nationally — with about 36,840 cases awaiting a resolution — rising from its fourth-place standing two years ago. The state trails California and New York, whose courts have 77,200 and 47,200 cases pending, respectively. In Texas, about 32,840 immigrants are being detained solely on immigration-related charges, and about 3,470 — or 9.4 percent of those with pending cases — have some other criminal violation or have been deemed a threat to national security, according to the data.
That is above the national average of 8 percent but still stands contrary with what the Morton memo was supposed to do, immigration lawyers argue. The memo, issued in June 2011, asked federal prosecutors to take into consideration the illegal immigrant’s education in the U.S. and whether he or she has graduated from high school and attended college before placing that person in deportation proceedings.
Officials were also directed to consider whether the illegal immigrant is the child or spouse of a U.S. citizen, has an immediate relative who has served in the military or is a primary caretaker of someone who is ill, in addition to the conditions in the person’s home country and the circumstances upon that person’s arrival in the U.S. — specifically if the person came as a young child. The illegal immigrant’s criminal history and whether he or she poses a risk to the country’s national security is also to be considered, as is any history of prior removal.
Attorneys say the memo has had little — if any — effect on the immigrants they represent before immigration judges. They say that some of their clients — who fall under the criteria outlined in the memo — are still being placed in deportation proceedings. The federal government, however, defends it practices and said instead that TRAC handpicked its data to suit its agenda.
“It is erroneous for TRAC to equate the number of cases coded as ‘criminal’ before immigration judges with the ultimate number of criminal removals,” Carl Rusnok, the director of communications for Immigration and Customs Enforcement’s central region, said in an email.
“ICE is not required to file charging documents in immigration court asserting criminal grounds of removal” for an immigrant who has committed a crime and is in the country illegally,” Rusnok said. “In these cases, an individual's criminal history, while relevant to ICE's decision to seek removal, is largely irrelevant to the legal question of whether the person has a right to remain in the U.S.”
Immigration courts, which are overseen by the Executive Office for Immigration Review, handle immigration cases not already decided by Immigration and Customs Enforcement.
Rusnok added that TRAC ignores statistics on how many immigrants are deported without going through an immigration court. He said the agency regularly deports immigrants through “voluntary, administrative, expedited and stipulated removals, as well as the reinstatement of previous removal orders.”
Sue Long, an associate professor of managerial statistics at TRAC, doesn’t argue that TRAC doesn’t have all the data it needs. She said the information would be included in the statistics but that she faults the federal government for being unwilling to furnish it.
“We have been trying for years to get ICE’s data for a number of reasons, and they have been uncooperative,” she said. “We would very much like to be able to look at all cases that they handle because it is true — some don’t go through the immigration courts — and I think the public is vitally interested in how those are handled. But unfortunately, there isn’t any information.”
Rusnok said exemptions preclude ICE from releasing certain information.
“In accordance with Department of Homeland Security privacy policies, we cannot release information on specific individuals,” he said.
Rusnok added that the government has actually increased deportations of criminal illegal immigrants. In 2011, ICE removed 216,000 convicted criminals who were illegal immigrants, which Rusnok said represents an increase of almost 100 percent over 2008, when 114,415 criminal immigrants were removed.
“So far this year, 51% of the individuals ICE has removed have been convicted criminal aliens,” Rusnok added in an email.
Despite ICE data not being included in the assessments, attorneys still argue that the Morton memo guidelines, which irked conservative leaders and led some to accuse the Obama administration of championing “backdoor” amnesty, have had little positive effect on illegal immigrants who they say fall under the memo’s guidelines for prosecutorial discretion.
“I think it would be fair to say that the immigration bar is not seeing the results of the Morton memo on pending court cases,” said Laura Lichter, the president of the American Immigration Lawyers Association. “We believe that the cases that are remaining in immigration proceedings still do not accurately reflect what should be priority cases.”
Lichter acknowledged ICE has increased its criminal immigrant deportations, but she said that it has also expanded its pool of who falls into that category.
An example, she said, is the immigrant who lived in the U.S. for more than a decade, returned home briefly for a funeral or family emergency, then was detained upon his or her return.
“They will classify that person as a recent entrant,” Lichter said. “I appreciate the fact that they are trying to make sure that their actual removals reflect their true priorities, but they have made the bucket so big it’s hard to fall in to the bucket.”
Jacqueline Watson, an immigration attorney in Austin, said she has had one case out of an active 117 dismissed since the memo was issued, but even that action she could not credit to the guidelines.
“I have had the case closed because the trial attorney didn’t oppose my motion but not affirmatively because of deferred action,” she said. The memo, she concludes, hasn’t helped her clients, which include a mother of five children, who are U.S. citizens, a couple with no criminal history and two American children.
“I can’t say where the lack of communication is, but I can say for sure that at the trial attorney level, we’ve been met with this [explanation]: 'This case doesn’t fit; this case doesn’t deserve deferred action,’ when it’s clear that the Morton memo was made for these kind of people,” she said.