Government data shows the Trump administration has already shifted the "culture" of immigration attorneys, who used to have more tools under the Obama administration to delay court decisions on whether to remove illegal immigrants, but are now being forced to push for a final verdict more quickly.
Under Obama, immigration attorneys were more likely to leave cases for illegal immigrants in limbo, thus preventing them from ever ruling on whether they needed to be removed from the U.S. An official from the Executive Office for Immigration Review explained to the Washington Examiner that attorneys would push for an administrative closure, or a pause in the proceedings before an administrative judge.
That pause could be achieved by seeking continuance in the case, which might then make it easier to justify a decision not to prosecute.
“Rather than getting [a decision on removal proceedings] … Instead it created this culture of seeking continuance to try to build up a request for prosecutorial discretion for administrative closure, and so it had a ripple effect,” the Department of Justice official said.
A report released by the Center for Immigration Studies earlier this year said the Obama era closed up to 200,000 deportation cases by using administrative closure.
But statistics provided by EOIR show that since President Trump took office, total orders of removal and final decisions issued by an immigration judge have increased.
From February to the end of September, immigration judges issued 100,000 final decisions on cases — and increase of 16 percent over the same period in 2016. The total number of removal orders increased 29 percent.
And since Attorney General Jeff Sessions issued a memorandum to all immigration judges, court administrators, attorney advisors and judicial law clerks, and immigration court staff in July, the DOJ official said there has already been a change in how continuances are used. The six-page memo reminded immigration judges when administrative closures should actually be used.
“[T]he delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court, exacerbate already crowded immigration dockets,” the memo said.
Matthew Kolken, an immigration lawyer, said that in contrast, the Obama administration used administrative closure as a means to clear the immigration court’s docket of active deportations by “by triaging cases they deemed to be a low priority for deportation.”
"They utilized a mechanism called administrative closure to remove the immediate threat of deportation by putting an immigrant into a state of legal limbo. Although still subject to the immigration court's jurisdiction, an immigrant facing deportation would no longer have to be concerned about having their case scheduled for a hearing. In sum, their case was put on the back burner of the stove, with the burner turned off," Kolken described to the Washington Examiner.
"President Trump's administration is now actively moving those cases back to the front burner of the stove and turning the heat back on so that deportation hearings may be scheduled for those who received a temporary reprieve," he said.