Not on board

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From behind the bench of her small courtroom on lower Broadway, Judge Terry Bain began to read.

In the second row of the gallery a young Chinese man in a white button-down shirt watched her carefully, his expression blank. The U.S. Immigration and Customs Enforcement agency (ICE) had targeted him for deportation after he was caught in the United States without papers. He had argued that he could not return to China because village officials had beaten him until he was bruised and bloody for belonging to the banned religious group Falun Gong.

Photo: Sasha Chavkin

In a flat, emotionless voice, Judge Bain plowed through lengthy statutes and subsections cited in her ruling as she prepared to announce her decision. Finally she faced the young man whose fate was hanging in the balance.

“I am granting you relief,” she said, and signaled him to approach the bench and shake her hand. “Congratulations.”

The scene that played out in Judge Bain’s courtroom has become increasingly common in New York City, as stepped-up federal deportation efforts clash with New York’s immigrant-friendly outlook.

While nearly two-thirds of deportation cases nationwide end in the target’s removal from the country, the results in New York City have been starkly different. Here, 74 percent of deportation proceedings this year have ended with the immigrant being allowed to stay in the United States. What’s more, over the last decade, the rate of New York City deportation proceedings that end with their subject being removed from the country has plummeted, down from 51 percent in 2002.

This dramatic surge in rejected deportations has occurred even though the government has wide discretion to decide whether to bring a deportation case in the first place. Last year, New York eclipsed Los Angeles in number of failed deportations, and now has more than any other city in the nation. Only Portland rejects a higher percentage of deportation cases brought by the federal authorities.

Asked what the high rejection rate said about its system of selecting targets for deportation, a spokesman for ICE said that it focuses its limited resources on deporting people with criminal records or frequent immigration violations.

Ross Feinstein, the spokesman, said the agency has further concentrated its efforts on these high-priority targets following the Obama Administration’s 2011 memos calling for prosecutorial discretion in deciding which deportation cases to pursue.

“We’re placing people into removal proceedings based on our priority categories,” Feinstein said.

But even after the prosecutorial discretion memos, the numbers and rates of deportations being rejected by judges In New York City has continued to grow, according to federal statistics on immigration court decisions compiled by Syracuse University’s TRAC database. Total cases completed climbed from 15,405 in 2010 to nearly 18,000 projected for 2012, while the proportion of these deportations that were blocked by judges increased from 66 percent to 74 percent. Annual terminations in New York City – in which judges simply dismiss deportation cases as inadequate rather than granting a person relief for reasons such as asylum – jumped from 1,504 in 2010 to 2,883 in 2011 to more than 3,700 expected for 2012. (The courts follow the federal fiscal year calendar, which ends September 30.)

Sandra Pierre, a mother of three from the West Indies, does not fit into ICE’s priority categories for deportation. (Pierre asked that the country and her Brooklyn neighborhood not be specified.) Yet the agency sought to remove her from the country, battling her for years until a judge granted her relief in March 2012. Both Pierre and her oldest son, Kimond, faced long deportation battles before ultimately being allowed to stay in the United States.

Pierre and Kimond were undocumented, but Pierre’s former husband had petitioned for them to receive green cards. Pierre believes Kimond was initially targeted for deportation after he was pulled over by undercover police officers who ran his name through an immigration database after a traffic incident in which he was not at fault. Kimond was held in detention for months in early 2008 — and Pierre believes that examining his case led the agency to open proceedings against her.

Pierre said the experience left her frightened and constantly vigilant.

“Sometimes I open the door and I scared like I seen somebody coming,” she said. “When I’m walking I have to look around to see who is watching me.”

Pierre’s younger son, Tree, who was only 8 years old, started acting up in school, drawing pictures of men with big guns, and even talking about killing himself. He has been in therapy since shortly after his brother’s detention.

Kimond was allowed to stay in the United States when his longtime girlfriend, who has American citizenship, married him after his release from detention. Ironically, Pierre was granted relief because the deportation cases had traumatized Tree — a U.S. citizen — so severely. This March, a judge ruled that it would cause extreme hardship to deport her and consequently force Tree to leave the only country he has known.

The case against Pierre had taken more than two years to resolve, which in New York City is par for the course. In 2012, the average deportation decision had taken 741 days to be resolved. This processing time has increased 82 percent since 2006, and is significantly longer than the national average of 532 days per case.

The statistics show thousands of stories like Pierre’s, whose experience tells a tale of wasted government resources and years of anguish for an otherwise law-abiding family, and ends with both of its undocumented targets in the same place as before the proceedings began. Each year for the last decade, more than 10,000 deportation cases have concluded in New York City, with the total increasing from 12,844 cases in 2002 to a projected 17,680 cases in 2012. Yet over this period, the proportion of these cases that have actually resulted in the target’s removal declined sharply.

Instead, the additional cases are adding to the lengthening backlog in New York’s immigration courts and causing increasing numbers of families to endure the same experience — and results — as Sandra Pierre.

So why are so many more deportation cases being brought now? And why are they so much less likely than before to be successful, particularly in New York City?

Stepped-Up Enforcement

Despite widely publicized recent regulations allowing many immigrants brought to the U.S. as children to avoid deportation, the Obama administration has in fact significantly stepped up immigration enforcement. Under his watch, deportations have climbed from 358,000 in fiscal year 2008, the final full year of the Bush Administration, to 396,000 in 2011.

Peter Markowitz, a law professor at Cardozo and the director of its Immigration Justice Clinic, said the pressure on ICE to justify its budget to Congress with increasing caseloads is leading the agency to cast a wider and less strategic net.

“Their win rate is not what’s rewarded,” Markowitz said. “What’s rewarded is the absolute number of summons and arrests. It’s a horrible bureaucratic incentive program.”

Experts say this has meant that new types of cases are being targeted for deportation. For example, for much of the last decade, undocumented immigrants who applied for green cards or other changes in their immigration status would sometimes be referred to ICE and placed into deportation proceedings.

JoJo Annobil, the attorney in charge of the Immigration Law Unit at the Legal Aid Society, said he has struggled for years to get the government to adjudicate naturalization applications before placing the person into removal proceedings. Some immigrants face deportation even as they await notice on applications to be naturalized as U.S. citizens.

If 2012 cases continue at their current pace, the number concluded this year in New York City will have increased by 37 percent over the volume a decade ago.

“I think there is enhanced enforcement so they are bringing weaker cases,” said Lynn Kelly, the executive director of the City Bar Justice Center, a nonprofit that provides pro bono legal representation to low-income clients.

Feinstein, the ICE spokesman, said that the agency selects its targets for removal carefully based on its priority categories. He also noted that the 2011 prosecutorial discretion policy directed ICE to review existing cases and drop those that fell outside its priorities.

“There are obviously new memos in place that lead us to review cases on a case-by-case basis and dismiss that do not fit with our priorities,” Feinstein said.

Nationwide, relatively few cases were dropped; the New York Times reported in June that after seven months of review, less than 2 percent of some 411,000 cases considered had been dismissed. But some advocates say that ICE’s New York office has been relatively scrupulous in complying with this order. Administrative closures — a decision by a judge to indefinitely close a deportation case without granting legal status, which may result from an offer of prosecutorial discretion by ICE — increased in New York City from 1,504 in 2010 to 2,116 in 2012.

Better Access to Lawyers

Immigrants facing deportation have the right to hire lawyers if they can afford it, but are not entitled to representation by a public defender. Whether they are in fact able to get a lawyer is a crucial factor in the outcome of these cases.

A December 2011 study led by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit examined access to counsel for deportation cases in New York State over the previous five years. The impact on outcomes was dramatic: for those who were not detained, 74 percent of those who had lawyers were allowed to stay in the country. Among non-detainees who didn’t have lawyers, only 13 percent had successful outcomes.

The Katzmann report showed that immigrants targeted for deportation in New York State are significantly more likely to have a lawyer than deportation targets nationwide. Over the period examined, 73 percent of New York immigrants targeted for deportation were represented at the time of their most recent hearing. Nationally, over a similar five-year period covering fiscal years 2006 through 2010, only 40 percent had lawyers at the time their cases were completed.

Kelly of the City Bar Justice Center said undocumented immigrants in New York City tended to have deeper ties to locally settled immigrant communities and longer United States residence than immigrants, such as migrant workers, elsewhere in the country. As a result, they are more likely to have the resources to hire a lawyer to help them fight their case.

Another key factor that determines whether a deportation target gets a lawyer is whether he or she is held in detention. In New York, for example, only one-third of detainees hired lawyers, while 79 percent of immigrants who were not detained were able to, according to the Katzmann report.

But of course a major determining factor is the disposition of the judges who ultimately decide whether immigrants targeted by the federal government get deported.

More Lenient Judges

At Manhattan’s immigration court, judges are consistently more immigrant-friendly than their counterparts nationally in deciding some of their highest-stakes cases: those in which immigrants seek asylum. Immigration Judge Terry Bain — who granted relief to the young Falun Gong practitioner in the case described in this story — ruled in favor of asylum in 95 percent of her cases from 2006 to 2011. Judge Vivienne E. Gordon-Uruakpa approved asylum more than 80 percent of the time; Elizabeth Lamb, 89 percent. The national average was 47 percent.

Immigration judges are appointed by the U.S. Attorney General, following a screening process in which applicants are reviewed by existing immigration judges based on criteria that include temperament, knowledge of immigration law, and experience with litigation.

But within and between different courts around the country, the likelihood that a particular judge will grant asylum varies tremendously. For example, a 2008 GAO report found that immigrants who filed for asylum in San Francisco were 12 times more likely to win their cases than those who filed in Atlanta. Law professors who studied the phenomenon call it “refugee roulette”: whether or not an immigrant stays in the country largely depends on which judge he or she draws.

Kathryn Mattingly, a spokeswoman for the Executive Office of Immigration Review, the Justice Department office that manages the immigration courts, said in a statement that her office “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities and ensure the quality of immigration adjudications.”

As for the New York courts’ extraordinarily high rate of failed deportation cases, Mattingly said she would not speculate on the reasons for judges’ decisions.

“I can only say that immigration judges adjudicate cases on a case-by-case basis,” she said.

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