North Texas immigration lawyers prepare as ICE reopens thousands of closed cases
In its efforts to reach its quota of 3,000 immigration arrests a day, the Trump administration has found a new target: thousands of low-priority cases closed as far back as a decade ago.
In the sunny upstairs conference room of his Fort Worth office on Hulen Street, immigration lawyer Jaime Barron shared a concern he and his peers from across the country discussed at last week’s annual conference of the American Immigration Lawyers Association.
“Under Trump 2.0, what they’re doing is they’re looking at all these thousands upon thousands upon thousands of cases and doing a rescheduling order,” he said.
The order “awakens” immigration cases that were in a status of administrative closure, a temporary pause on a removal order due to the person’s case being considered a low priority.
Barron’s firm has to date seen fewer than a dozen such cases reopened, but he expects many more as the year progresses.
An ICE spokesperson did not respond to multiple emails asking how many cases in administrative closure have been reopened both in North Texas and nationwide, but Barron and other lawyers consulted by the Star-Telegram said the influx of new cases will put further strain on an immigration court system already strained by a backlog counted in the millions.
How ICE used prosecutorial discretion for some cases
In order to deal with the mounting backlog of cases, the Obama administration began exercising “prosecutorial discretion” to determine how to prioritize cases in the immigration system.
A 2011 memo from then ICE Director John Morton cited the agency’s limited resources and instructed personnel to focus on enforcement priorities like “the promotion of national security, border security, public safety, and the integrity of the immigration system.”
Prosecutorial discretion is a legal concept that gives prosecutors and enforcement agencies the authority to determine the degree to which they want to enforce the law against an individual, the memo states.
Morton directed ICE officers, agents and attorneys to consider on a case-by-case basis factors such as the manner in which a person arrived in the United States, how long they had been in the country, education, military service, criminal history, community ties, home country conditions and others when deciding whether to use prosecutorial discretion to administratively close a case.
The memo also directed ICE personnel to prioritize people who posed a “clear risk to national security,” felons and others with “lengthy” criminal records, known gang members and people with “egregious” records of immigration violations like illegal re-entry and immigration fraud.
ICE exercised prosecutorial discretion for the rest of the Obama administration, but Trump put a stop to the practice during his first term. The agency restarted the practice during Joe Biden’s presidency.
“The government deemed that these people are not dangerous,” Barron said. Prosecutorial discretion drew ICE’s attention away from “people that had no problems but being undocumented” and allowed immigration authorities to “focus on bigger issues with people that had deportation orders or crimes or illegal re-entry.”
How many such immigration cases have been reopened?
In lieu of official numbers from ICE, the immigration lawyers consulted by the Star-Telegram could only speculate how many people will be affected by this change.
Paul Hunker, a Dallas-based immigration lawyer who worked as chief counsel for ICE, said it could add over 100,000 cases to the immigration courts. His firm has so far seen 15-20 administratively closed cases reopened.
U.S. immigration courts currently have a backlog of over 3.5 million cases, according to the Transactional Records Access Clearinghouse, a nonprofit research organization at Syracuse University.
TRAC did not have data on how many administratively closed cases have been reopened, but its previously reported data show that such cases rose sharply after the 2011 memo and reached a peak in 2016 at more than 50,000 that fiscal year.
Published in September 2020, that report found that administrative closure helped reduce the case backlog and that people whose cases were put in administrative closure tended to gain lawful status through legal means.
The Trump administration appears to be “biting off its nose to spite its face” with the reopened cases, Hunker said.
The optics of reopening cases and rescheduling immigration hearings, what is referred to as “recalendaring,” may appear to address one of the administration’s perceived hurdles to mass deportations, he said, but it won’t change the big picture situation.
While removals might be sped up in some individual cases, “putting more cases into the system is going to overall slow things down,” Hunker said.
Dallas-based immigration lawyer Haim Vasquez agreed that the reopened cases will bring more delays to an immigration court system already having difficulty handling its caseload.
“Nevertheless, this aligns with the current administration’s position to ramp up detentions and removals,” he said. The number of reopened administratively closed cases his firm has seen so far was not readily accessible, he said.
The firings of immigration judges in February as part of the administration’s cost cutting DOGE program added to the backlog strain.
“The judges are overwhelmed. They can’t do the work,” Barron said. “Now you throw 100, 200,000 more cases at them, and I would not want to be an immigration judge right now. It’s just unending, overwhelming.”
Immigration lawyers will struggle to track down clients
One issue Barron is seeing with administratively closed cases is that ICE is contacting people’s original attorneys to notify them, rather than the firm they worked for at the time the case was closed, in some instances as far back as a decade or more. But many of those lawyers have moved on to other firms.
“We’re having some of our former attorneys notify us, like, ‘Hey, I got this order. I’m on the hook for this case. Can you find them?’” he said. “The problem is we don’t find all the clients, so we expect that the clients we don’t find are going to be in serious trouble, because only God knows when they’re going to get scheduled. But if they no-show to court, then it’s automatically they have a removal.”
Vasquez recommended that people whose cases were put on administrative closure reach out to their attorneys to stay on top of the situation.
“It will be a good approach, not necessarily because their case is reopened, but to understand what could happen,” he said.
Overall strategy is fear and intimidation, lawyers say
Vasquez has seen immigration enforcement intensify in the past, but said there is something different about the second Trump administration’s crackdown.
“I have been an attorney for over 14 years, and I have never seen this level of fear,” he said.
During a recent consultation, a person who works in construction told him he had saved for two months in order to be able to avoid going to work out of fears of being detained on the job. Vasquez has even received phone calls from permanent residents and naturalized citizens who are worried about potential enforcement activities while they work or travel.
“So this is affecting not only the immigrant community, but the non-immigrant community, the people who were already here, who are legal here, who might come from an immigrant background,” he said. “They are also feeling stress and anxiety.”
The Trump administration’s expanded expedited removal policy allows immigration authorities to quickly expel people who cannot prove they have been in the country for more than two years, but even those who can should be aware of intimidation tactics used to deport them more easily, Barron said.
He told of officials intimidating or deceiving detainees into signing voluntary departure documents after being made to think they will be able to apply for residency from abroad.
“If they sign thinking that they were giving good advice, they’re removed. That’s it. They’re done,” he said. “They didn’t realize that they gave all their rights away because they signed a voluntary departure.”
The Star-Telegram asked to speak with one of Barron’s clients whose case had been reopened, but none agreed, even on condition of anonymity.
