The Immigration Court's Institutional Hearing Program: How Will It Be Affected
Special Immigration Court hearings under the court's Institutional Hearing Program (IHP) appear slated for expansion under President Trump. A new directive, signed by Department of Homeland Security Secretary John Kelly on Monday, February 20, provides that "to the maximum extent possible" removal proceedings be initiated against noncitizens currently "incarcerated in federal, state, and local correctional facilities."
Such court removal proceedings are carried out through the Department of Justice's Institutional Hearing Program within the Executive Office for Immigration Review (EOIR). Through this program, immigration judges determine whether noncitizens are deportable while they are still incarcerated and serving their sentence.
The IHP program has been in existence for over 35 years. An analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University of case-by-case court records show that under previous presidents more than 200,000 individuals have been processed through this program. Fully 70 percent of these IHP proceedings were at state correctional facilities, and 27 percent were at federal facilities. The remaining 3 percent were at municipal or county correctional facilities. See Figure 1.
To conduct IHP court hearings, immigration judges either traveled to these prison facilities, or the hearing was conducted by videoconference. If a judge determined that a removal order was warranted, then that person was released to Immigration and Customs Enforcement (ICE) officers and deported. Deportation occurred after the individual's prison sentence was completed, or sometimes earlier through special arrangement with the correctional facility.
Tracing the Growth and Fall in IHP Court Hearings
IHP court records over the last three decades trace both a dramatic growth and then precipitous fall in the number of individuals handled through this system. These trends may prove instructive in helping to assess the impact of this new DHS directive on the court's workload.
Initially started at federal prisons and then expanded to state facilities, in the late 1980s a dramatic upsurge began in the IHP's caseload. Figure 2 plots the annual number of IHP cases concluded at federal, state, and municipal correctional facilities from FY 1980 through FY 2016. (For detailed numbers, see the Appendix Table.)
After this period of sharp IHP growth, the implementation of new immigration legislation - the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) -- caused an abrupt change in these trends. Under IIRIRA, the Immigration and Naturalization Service - now absorbed into Homeland Security -- was given new authority to bypass the Immigration Courts.
First, immigration officers were able to reinstate prior orders of removal directly instead of have this handled by immigration judges. A second new provision allowed the federal government to administratively order the removal of most noncitizens convicted of what were defined as aggravated felonies, again without any court involvement. Under this provision, only lawful permanent residents were afforded a court hearing.
These two legislative changes caused the number of IHP cases to drop dramatically, particularly at state facilities. See Figure 2. It was no longer necessary for the court to become involved in order to deport many of these incarcerated individuals.
After IHP workloads peaked in FY 1997 and then dropped sharply, caseloads leveled off for a short time. Around 2005 their numbers for a variety of reasons began a slower but more general decline.
As the past history of IHP demonstrates, there are competing forces that impact IHP caseloads. Caseloads increase when more correctional facilities are added to the program. A possible source for future increase might be if more city and county facilities not currently covered are added.
Workloads increase further if more inmates at correctional facilities are targeted for deportation. This might happen were some inmate offenses not in the past considered serious enough to be a priority, are now considered a priority.
The overriding influence, however, will likely be the extent to which the administration is able to substitute administrative processes to bypass the need for a court hearing. The directive commands that such administrative procedures "shall be used in all eligible cases."
The net impact of these countervailing forces on the Immigration Court's IHP caseload levels will only become clearer once more details emerge about how these provisions actually will be implemented.
 In addition to the two provisions mentioned above, IIRIRA also gives DHS "expedited removal" authority. Other parts of this DHS February 20 directive call for greatly expanded use of this authority.