Docket review pulls curtain back on procedure by Homeland Security

In the month after Homeland Security officials started a review of Houston’s immigration court docket, immigration judges dismissed more than 200 cases, an increase of more than 700 percent from the prior month, new data shows.

The number of dismissals in Houston courts reached 217 in August — up from just 27 in July, according to data from the Executive Office for Immigration Review, which administers the nation’s immigration court system.

In September, judges dismissed 174 pending cases — the vast majority involving immigrants who already were out on bond and had cases pending on Houston’s crowded downtown court docket, where hearings are now being scheduled into 2012.
Roughly 45 percent of the 350 cases decided in that court in September resulted in dismissals, the records show.

The EOIR data offer the first glimpse into Homeland Security’s largely secretive review of pending cases on the local immigration court docket.

In early August, federal attorneys in Houston started filing unsolicited motions to dismiss cases involving suspected illegal immigrants who have lived in the country for years without committing serious crimes.

News of the dismissals, first reported in the Houston Chronicle in late August, caused a national controversy amid allegations that the Obama administration was implementing a kind of “backdoor amnesty” — a charge officials strongly denied.

In recent weeks, some immigration attorneys reported the dismissals have slowed somewhat, while others reported they now have to ask ICE trial attorneys to exercise prosecutorial discretion in order to have their cases dismissed. Others, however, said they are still being approached by government attorneys seeking to file joint motions for case dismissal.

“They’re still doing it,” said immigration attorney Steve Villarreal. “They’re just doing it quietly.”

Immigration and Customs Enforcement officials declined this week to discuss specifics of the docket reviews and dismissals, which are also going on in several other cities, including Dallas and Miami.

In response to the Houston EOIR data, ICE spokeswoman Gillian Brigham noted that immigration judges can terminate cases for other than prosecutorial discretion, such as when ICE does not meet its burden of proof. The Houston immigration courts averaged about 38 case terminations each month in the 10 months prior to the DHS review.

Broad set of criteria
ICE has tried to downplay the docket reviews, suggesting in some media accounts that they were limited to cases involving illegal immigrants with pending petitions filed by U.S. citizen relatives.

However, EOIR’s liaison with the American Immigration Lawyers Association, Raed Gonzalez, said he was briefed on the guidelines in August directly by DHS’ deputy chief counsel in Houston and described a broader set of internal criteria.

Government attorneys in Houston were instructed to exercise prosecutorial discretion on a case-by-case basis for illegal immigrants who have lived in the U.S. for at least two years and have no serious criminal history, Gonzalez said.
To qualify for dismissal, defendants also must have no felony record or any misdemeanor convictions involving DWI, sex crimes or domestic violence, he said.

Several dismissed cases examined by the Chronicle involved defendants without U.S. citizen relatives but with arguments for dismissal on humanitarian grounds, such as illegal immigrants brought to the U.S. as children who have stayed out of trouble and are enrolled in college.

Supporters of the review called it a necessary, common-sense step to reduce the system’s staggering backlog, which hit an all-time high this year. In June, the number of pending immigration cases nationally reached 247,922, including 7,444 in Houston.

By moving to dismiss cases for people who have stayed out of trouble, the agency will be better able to use its limited resources to more rapidly deport those with serious criminal records, supporters said.

“It makes all of the sense in the world,” John Nechman, a Houston immigration attorney, said of the review, which has led the dismissals of cases for several of his clients.

Dismissed, but still illegal
The dismissals essentially mean that officials are no longer actively trying to remove defendants through the immigration court system, though they can refile such charges at a later date.

The dismissals do not convey any kind of legal status, so recipients remain illegal immigrants and cannot work legally in the U.S.

But critics still charge that the dismissals show the government is not enforcing the law.

“When you have this kind of mass dismissal, it sends a very clear message to illegal immigrants, and to society at large, that the government is not serious about enforcing the laws,” said Mark Krikorian, executive director of the Center for Immigration Studies, an organization that advocates for stricter border controls.

“This type of action muddles the message so both the public at large as well as illegal immigrants don’t know what to think.”

October 17, 2010 by Susan Carroll for the Houston Chronicle

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