It’s an interesting moment for immigration reform in the United States. The very phrase has come to symbolize the failure of the Obama Administration to push much meaningful change through Congress, since the Senate bill to create a 13-year path to citizenship for undocumented migrants floundered amongst GOP opposition last year. Perhaps it was the federal shutdown that threw reform off the rails. Or maybe Republicans just aren’t ready to stop shooting themselves in the foot by alienating one of the fastest growing minorities in the country.
Though politicians on both sides of the aisle are still demanding to see reform in 2014, it’s unclear how quickly the issue will make a serious comeback. But new data from the Transactional Records Access Clearing House, a research group at Syracuse University, show that an increasing number of unauthorized immigrants are beating deportation charges. Several hundred thousand undocumented people are deported yearly – 368,644 in fiscal year 2013 – for anything from running a stop sign or crossing the border illegally to committing a violent crime.
The rate of these deportation cases that ICE is losing is now higher than at any time in the last 20 years. As the Associated Press reports, over 78 percent of those facing deportation in Phoenix have won their cases this fiscal year, a marked change from 35 percent in fiscal year 2010. Since October 2013, immigration judges have seen 42,816 cases across the country, and allowed nearly 50 percent of those defendants to stay in the U.S. at least temporarily, up from just 24 percent five years ago. California and Oregon show some of the strongest shifts toward leniency. Utah is one of the few states to resist that change, with judges there still more likely to side with Immigration and Customs Enforcement (ICE) in booting migrants out of the country.
So why has ICE been losing more cases? “We really don’t know,” says Susan Long, a statistician and sociologist with TRAC. “That would be a good question to ask ICE.” (At the time this story was published, ICE had not responded to requests for comment.) Long is wary of drawing conclusions about the reasons. because the trend could be caused by a variety of factors. But one thing’s for sure – she and other researchers were surprised by the numbers.
To begin with, Long had thought that the rate of deportation would have actually gone up thanks to a 2011 federal initiative. The push to close thousands of pending deportation cases in an effort to trim the massive backlog and prioritize immigrants who truly pose a threat to public safety, led Long to believe that the rate of immigrants able to fight off deportation would go down, not up. In other words, a more focused deportation strategy was supposed to result in fewer court cases but a higher rate of deportation for those that did in fact make it to court.
“They’d be able to deport more people more speedily and (those immigrants would) be the kind of people that would be their high priority targets” Long says. But the new data show that instead, half of the cases brought to court, for one reason or another, are not strong enough to deport people. “Maybe the preparation of cases isn’t done well,” Long offered. Because multiple agencies, including ICE and Customs and Border Patrol are involved in filing and defending the cases, there may be room for sloppy preparation, she speculated. Plus, deportation cases aren’t screened like most court cases are, which would allow prosecutors to see whether the evidence supports the charge, before the case even makes it to court.
Since detained immigrants have no constitutional right to a lawyer, legal representation has long been a challenge for people facing deportation. A pilot project that provides public defenders for immigrants began in November in New York City, in a state with one of the highest rates of success in fending off deportation in the new TRAC reports. Yet that’s just one city, and there hasn’t been enough wide-spread improvement in legal representation that could account for the uptick in immigrants winning their cases.
In addition to the trend toward more immigrants winning their cases, TRAC also publicized data about whom ICE asks local law enforcement to detain in the first place. Amid growing criticism of the federal government’s treatment of undocumented immigrants, President Obama and ICE have been the most dangerous criminals in deportation cases. A a 2011 memorandum from ICE director John Morton reoriented his agency to prioritize “removal of aliens who pose a danger to national security or risk to public safety” as it pushed to eliminate the backlog of cases. That means focusing on terrorism or espionage suspects; those convicted of crimes, especially violent crimes, felonies and repeat offenses; gang members and those subject to outstanding criminal warrants.
But apparently half of the hundreds of thousands of people ICE put detainers on have no prior criminal convictions. Traffic violations and DUIs, followed by marijuana possession, were the leading charges that caused ICE to detain immigrants. Susan Long says many immigrants who pose little or no threat to public safety are still being detained and taken to court, clogging up government resources. “The stark difference between (ICE’s) rhetoric and its actual performance is startling,” a recent TRAC report reads.
The process of detaining potentially deportable immigrants is itself a point of contention. Since its implementation in 2008, the Secure Communities program has required local law enforcement to send fingerprints of arrestees to the feds. Then ICE can ask local police to detain for 48 hours anyone that matches federal records for unauthorized people. “That's so ICE agents have time to pick them up and most likely deport them,” said reporter Amy Isackson at the California Report.
Local law enforcement around the country has pushed back against Secure Communities, a program that led to the deportation of 280,000 people in its first five years. California police and legislators were the first to openly criticize the program, saying it created more work for local departments and discouraged witnesses from reporting crimes because they may be discovered as undocumented and summarily detained.
Long says there are still plenty of questions unanswered about how and why certain immigrants are detained and why they’re winning more court cases than every before. “It's just surprising,” she says of the latter trend. “But hopefully by putting it out there, people will ask questions.”
Tay Wiles is the online editor at High Country News. She tweets @taywiles.