Last week, two separate branches of DHS released important evidence supporting the argument that our immigration laws are fundamentally broken. The Office of Immigration Statistics released its annual report on removal and return statistics, noting that removals in 2009 totaled 393,289—marking the seventh straight year of increase. Meanwhile, ICE released a memo directing legal counsel to review and terminate certain immigration court cases where the immigrant also had an application pending in front of USCIS. ICE estimates that approximately 17,000 people may benefit from this new policy. When you juxtapose the numbers, however—393,289 v. 17,000—it reminds you just how out of balance our immigration system has become.

First, the ICE memo. Assistant Secretary John Morton ordered his staff to commence a countrywide systematic review of whether certain cases in immigration court need to be there. By identifying cases in which an immigrant’s application for some form of status is pending in front of USCIS, ICE and USCIS can avoid duplicating resources by moving some people through the system faster and more efficiently. Morton’s memo appears to require that the individual immigrant be otherwise eligible for some sort of lasting legal status—including having an available visa number. If all goes according to plan, roughly 17,000 people may have their deportation cases terminated (closed, charges dismissed) before the immigration judge while their application is processed at USCIS.

From a lawyer’s perspective, this is a smart and common sense approach to maximizing government resources and reducing the strain on the immigration courts. It’s hardly an amnesty program—as the tiresome immigration restrictionists claim—given that these people are currently in line for some form of status, have an application pending, and a decent chance of getting it approved. Why would we want to clog an overburdened immigration court system with folks who don’t need to be there?

So these 17,000 aren’t even likely candidates for deportation. A good move, but hardly pushing the envelope. Yet, terminating cases such as these has been an ongoing battle between ICE and USCIS since DHS was formed back in 2003. If anything, the memo represents a victory for common sense, even if it does little to change the actual removal numbers. Far more people will likely end up in next year’s removal statistics, regardless of this new policy, because there simply isn’t relief available for most folks. And as long as apprehensions continue unabated, the number of removals is likely to increase.

And that’s where the 2009 removal statistics come in. While 393,289 people is a pretty big number, it represents a host of different removal practices and procedures. Over half (58%) of all removals last year were attributable to procedures that are essentially on autopilot—expedited removal and reinstatement of removal, which have been chugging along since 1997. Both are based on laws that give little discretion to the officer, so that once you encounter someone who fits into these categories, there is arguably little you can do to stop the train. While there are plenty of good arguments for reforming or refining these administrative removal procedures, they are part of a broader legislative debate that just isn’t happening.

The same goes for the other 42% (165,000 or so people) who were removed based on an immigration court order. We can only speculate about their circumstances—when and why they were apprehended, how long they were in the system—making it hard to know how many cases, if any, are attributable to current enforcement practices or priorities. Frankly, some people will be deported no matter what the policy. And even when comprehensive immigration reform is enacted, there will continue to be removals. So, the issue is not the fact that people are being removed, but that the system is so fundamentally stacked against most individuals that they have no chance to make themselves right with the immigration laws.

If you juxtapose the numbers represented by these two DHS documents—393,289 v. 17,000—you start to get a sense of how out of balance things are. Removals are high, opportunities for immediate relief are low. It is an imbalance that plays out across the system when Congress allocates another $600 million for border security but does nothing to eliminate legal immigration backlogs. Every time more money and attention is paid to one side of the scale, the deportation and removal side, the balance grows more off-kilter.

Photo by jstrak.