EOIR Releases 2009 Statistical Year Book

The Department of Justice's (DOJ's) Executive Office for Immigration Review (EOIR) has recently released its Fiscal Year (FY) 2009 Statistical Year Book, summarizing the work of the EOIR for the past five years. The 129-page report was prepared by the EOIR's Office of Planning, Analysis and Technology. The report predominately covers cases before immigration courts and the Board of Immigration Appeals (BIA) but also includes cases received and completed by the Office of the Chief Administrative Hearing Officer (OCAHO).

The report begins with a list of highlights for FY 2009. According to the report, receipts by the immigration courts increased by 11% between FY 2008 (when they were 351,477) and FY 2009 (when they were 391,829). Immigration court completions in FY 2009 (353,082) increased by 4% from FY 2008 (339,440). Decisions by immigration judges (IJs) were found to have increased by about 1.5% between FY 2008 (229,316) and FY 2009 (232,212) but were down 12% compared to the recent high in FY 2005 (264,785). Thirty-nine percent of all completed court proceedings involved legal representation in FY 2009, a 1% decrease from 40% of represented cases in FY 2008. Among immigration court case completions, Mexico, El Salvador, Guatemala, Honduras, and China were the leading nationalities of the aliens in the immigration court completions.

The overall failure-to-appear rate fell to 11% of cases, a new five-year low, resulting in 25,330 in absentia orders being issued. The failure-to-appear rate for aliens who were once detained but subsequently released on bond or on their own recognizance decreased to 22% (23% in FY 2008), and the rate for those aliens who were never detained decreased to 27% (29% in FY 2008).

With respect to asylum statistics, the FY 2009 asylum filings at the immigration courts continued to decrease with a drop of 7,400 applications, with the decrease split nearly equally between affirmatively-filed and defensively-filed applications. Atlanta, Georgia; Los Angeles, California; Miami, Florida; New York City, New York; and San Francisco, California, received over half of all asylum filings in FY 2009.

While the rate at which asylum applications were granted increased slightly from 45% in FY 2008 to 47% in FY 2009, the actual number of grants decreased over the same time frame, with a total of 10,757 being granted in FY 2008 and only 10,186 in FY 2009. The five immigration courts that heard at least 100 cases and have the highest percentage of approved asylum cases are East Mesa, California (90%, 99 grants out of 110 cases), Arlington, Virginia (74%, 372/505), New York City, New York (73%, 4,076/5,608 grants), Honolulu, Hawaii (72%, 119/165), and San Diego, California (69%, 264/384 grants). The five immigration courts that heard at least 100 cases and have the lowest grant rates are Krome North SPC, Florida (8%, 221/249 denials), Eloy, Arizona (8%, 92/100 denials), Florence SPC, Arizona (11%, 93/104), Omaha, Nebraska (12%, 199/226) and Denver, Colorado (165/209). A table from the FY 2009 Statistical Year Book showing FY 2009 asylum grant rates listed by specific immigration court location is reproduced below.

There were a total of 25,665 cases filed under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention Against Torture). Of those, 504 were granted some form of relief, 10,894 were denied, 5,583 were withdrawn, 1,340 were abandoned, and 7,344 resulted in some other type of action not listed.

Turning to the BIA, the number of cases filed with the BIA decreased slightly to 32,859 in FY 2009, down from 33,464 in FY 2008. Only 8% of the decisions made by IJs were appealed to the BIA in FY 2009.

At the end of FY 2009, there were 27,969 cases pending at the BIA, down slightly from FY 2008 in which 28,874 were pending at the end of the fiscal year.

Cases in which aliens are represented remained about the same, with 77% of completed cases, or 22,770, having some representation for the alien.

The FY 2009 edition of the EOIR Statistical Year Book, which includes many charts, graphs, and a glossary of terms, can be found at http://www.justice.gov/eoir/statspub/fy09syb.pdf.

EOIR Immigration Law Advisor

EOIR Virtual Law Library - AG/BIA Precedent Decisions

EOIR has published a monthly internal legal newsletter, the Immigration Law Advisor, since January 2007 summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update.

Volume 4 #1

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Seventh Circuit: Milanovic v. Holder, __F.3d__, 2010 WL 22371 (7th Cir. Jan. 6, 2010): The Seventh Circuit affirmed the denial of the Serbian petitioner‚ applications for withholding of removal and protection under the Convention Against Torture. (The petitioner‚ asylum application was dismissed as untimely.) The Immigration Judge found that the petitioner was persecuted when he was beaten by supporters of Slobodan Milosevic. However, relying on the State Department Country Report, the Immigration Judge ruled that DHS rebutted the presumption of future persecution, given that Milosevic is no longer in power. With respect to the petitioner's argument‚that his claim of persecution was based on the actions of a purely local official and thus the ouster of Milosevic could not constitute a change in country conditions sufficient to rebut the presumption of future persecutions, the court ruled this argument was waived because the petitioner did not present it to the Immigration Judge or Board. The court further ruled that, even if the petitioner's argument was not waived, there is adequate evidence to support the Immigration Judge's determination that the removal of Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution.

Haile v. Holder, __F.3d__, 2010 WL 22372 (7th Cir. Jan. 6, 2010): The
Seventh Circuit remanded following the denial of the petitioner's application for asylum. The petitioner was born in Ethiopia to parents of Eritrean ethnicity. When Eritrea and Ethiopia separated in 1993, the petitioner's parents renounced their Ethiopian citizenship and became Eritrean citizens, but the petitioner remained in Ethiopia and kept his Ethiopian citizenship. In 1998, when war began between Ethiopia and Eritrea, Ethiopia expelled 75,000 Ethiopian citizens of Eritrean ethnicity. Before he could be expelled from Ethiopia, the petitioner went to the United States and applied for asylum, arguing that Ethiopia's stripping him of citizenship constituted persecution. The Immigration Judge initially denied the application on the grounds that stripping a person of citizenship, without anything more, is not persecution. The Seventh Circuit remanded in Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005), but the Board subsequently denied the application again. In remanding for a second time with its present decision, the court first agreed with the Board "that not all denationalizations are instances of persecution." However, the court disagreed with the Board's conclusion that even if a person loses his citizenship because of a "A protected ground‚" . . . such a loss of citizenship does not, without more, amount to persecution.‚" In this respect, the court stated that "i]f Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans . . . and [this] suggest[s] that his denationalization was persecution and created a presumption that he has a well-founded [sic] fear of being persecuted should he be returned to Ethiopia."

Bayo v. Napolitano, __F.3d__, 2010 WL 174231 (7th Cir. Jan. 20, 2010):
The Seventh Circuit denied the petition for review of a citizen of Guinea from the DHS‚ summary order of removal. The petitioner, who entered the United States under the Visa Waiver Program using a stolen Belgian passport, had been ordered removed by DHS without being placed in removal proceedings. The court rejected the petitioner's argument that the VWP provisions could not apply to him as a citizen of Guinea (a non-VWP country) and further found no due process violation based on the petitioner‚ claim that his signing of the waiver of his right to a hearing was not‚ "knowing and voluntary" where he failed to establish that he was prejudiced as a result. The court finally found that the petitioner was precluded from pursuing his adjustment of status application (based on his marriage to a United States citizen) where such petition was filed beyond the 90-day limit for visits allowed under the VWP provisions.

Kucana v. Holder, __S. Ct.__, 2010 WL 173368 (Jan. 20, 2010): The Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Seventh Circuit, which had ruled that it lacked jurisdiction to review the Board's denial of a motion to reopen based on a claim of changed country conditions in Albania. The Court held that the provisions of section 242(a)(2)(B) of the Act prohibit judicial review of matters in which the Attorney General is given discretion by statute, but not to matters in which the Attorney General grants discretion to the Board by regulation.