In a published concurring opinion from the denial of a stay of removal, Judge Reinhardt write, in part:
“We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.”
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Judge Reinhardt is a well-know liberal jurist, so perhaps his candid remarks come as no surprise. Read his full opinion which gives the facts of Magana Ortiz’s situation.
During most of my career at Arlington, I felt that everyone in the courtroom had worked hard to reach the fairest and best possible result under the law. Basically, whenever we could legitimately save someone’s life in accordance with the law, we did. During my tenure, I received tremendous cooperation and support not only from the private immigration bar but also from the DHS Office of Chief Counsel, which often could help achieve reasonable solutions that would have been outside of my reach. But, sadly, from feedback I am getting, that spirit of teamwork and cooperation in achieving justice seems to have disappeared under the new regime.
Even in Arlington, however, there were a few days when I felt like Judge Reinhardt. I was entering orders of removal against folks who, while not legally entitled to remain, were actually assets to our country. In other words, by enforcing the law, I was actually making things worse, not only for the individual, but for his or her family, their community, and the overall interests of our country.
This has become particularly true as successive administrations have filled U.S. Immigration Court dockets with cases that there is no hope of completing in a timeframe that would produce a fair result. Yet, the cases, and the lives involved in them, linger and are passed from docket to docket, from court to court, from date to date, as one misguided set of “priorities” replaces another one in a system where political operatives ultimately pull all the strings.
This is what I call “Aimless Docket Reshuffling;” and it is close to bringing down the entire U.S. Immigration Court system, and a large chunk of the American justice system with it.
PWS
05-30-17
PWS: “everyone in the courtroom had worked hard to reach the fairest and best possible result under the law. Basically, whenever we could legitimately save someone’s life in accordance with the law, we did. “ And
“ there were a few days when I felt like … I was entering orders of removal against folks who, while not legally entitled to remain, were actually assets to our country. In other words, by enforcing the law, I was actually making things worse, not only for the individual, but for his or her family, their community, and the overall interests of our country.”
G; My thoughts, precisely. So I agree with PWS that:
“ Cases that there is no hope of completing in a timeframe that would produce a fair result….the lives involved in them, linger and are passed from docket to docket, “priorities” … ultimately pull all the strings. So = “Aimless Docket Reshuffling;” and it is close to bringing down the entire U.S. Immigration Court system, and a large chunk of the American justice system with it.”
G: I care because I dedicated 33 years of my life to it. I’m sure most of you reading this care too. That’s why I hate Trump telling Americans to treat immigrants like a contagion. Sick dude #realdonaldtrump. Thanks,
G
In fairness, the ADR really started toward the end of the Clinton Administration. That’s when the DOJ forced the Director to come up with fake “goals and timetables” for cases.
I was BIA Chair at that time. The goals and timetables were basically developed by the Executive Group, under pressure from the DOJ. Nobody involved the sitting IJs. Although I consulted with the Board Members, I don’t think my input was taken seriously.
The “g&t” had to do with meeting or setting political expectations. They had nothing to do with what really happens to cases in Immigration Court on a daily basis. So, they never achieved any credibility or traction with sitting Immigration Judges.
Then, the Bush Administration made everything worse with the “extreme streamlining” at the BIA, and “Mickey Mouse” timetables for BIA adjudication.
These had two immediate disastrous effects in my view. First, one obvious way to satisfy the unrealistic goals was for Board Panels and individual Board Members to remand more cases to IJs for further development of the facts. This type of sophisticated ADR “completed” the appeal without resolving the case.
Second, by stripping the BIA of de novo factfinding authority, Ashcroft basically forced the BIA to needlessly remand many cases for further factfinding rather than resolving them finally at the BIA. When the cases came back, they often sat for months, or even years, before getting on the IJ’s Master Calendar. By that time, the original IJ had sometimes retired or transferred, or the party had moved, so the remanded cases often went to a different IJ or even a different Immigration Court. ADR to the max!
Finally, the boneheaded requirement that the BIA remand cases solely for a ministerial “print check” on grants of relief is pure ADR. No value added whatsoever. Certainly, with a little creative thinking the DOJ and DHS could have figured out a system for checking prints while the cases were still at the Board.
I believe I had only one case in my career where the prints check actually changed the result. And that was because during the time the prints were pending the R had the bad judgment to get in trouble again and end up back on my detained docket.
None of this “Extreme ADR” actually completes cases. But it does create inflated stats. By doing a prints check on remand, we actually “completed” the case three times for EOIR purposes — twice at the Immigration Court and once at the BIA.
And, at least until recently, things like changes of venue were counted as “completions.” Thus, cases could be counted as “complete” at the Immigration Court and the BIA multiple times without any real final resolution!
The Obama Administration made the situation even worse by switching around the “priorities” several times: from “1-year cases, to 5-year cases, to “juveniles and recently arrived adults with children.” Every time a switch was made the “old priority” immediately became a “non-priority.” Thus, cases that were already 5 or more years old were aimlessly moved to Masters on my “Non-Priority” docket so that the IJs they were originally assigned to could be reassigned to the “new priorities.” Complete mindless chaos!
Other than that, it’s a great system!
Cheers,
Paul
Paul and Gus would like the Administration to fix harsh immigration laws by not enforcing them or by just enforcing them when it is just and proper, or however they want to describe it.
That poses many problems, but I will just comment on one of them. The benefit of enforcing the laws as written is that this defers enforcement policy to Congress, which has many checks and balances. Letting the Administration do it leaves it up to one man, the president.
When I took government classes in college, one of my professors said that the best government is a benevolent dictatorship. In effect, that’s what Paul and Gus want. When Obama was the president, they were delighted to let him decide which immigration laws should be enforced. But as I warned them at the time in my articles, he was not going to be the president forever.
Now we have Trump in the presidency. So now it is a terrible injustice to let the president decide which immigration laws should be enforced. The dictatorship is not longer benevolent as far as they are concerned.
Make up your minds, gentlemen. Do you want the president to decide which immigration laws to enforce or not? If you do, stop complaining when we have a president you don’t like.
I want congress to do it. The solution to harsh immigration laws is to FIX ’96, i.e, put back the discretion that was removed by IIRIRA.
And while you are at it, add more forms of discretionary relief to address harshness that reversing IIRIRA won’t fix.
Congress has failed. That’s where the Executive has stepped in. I agree with you that Congress has ceded far too much authority to the Executive, largely leaving it to the Courts to battle with the Executive on retaining some balance.
I have criticized many of Obama’s policies. In many ways, he too got caught up in futile, unproductive, wasteful enforcement initiatives. But, at least Obama tried at some level to make sense of enforcement policy, quite unlike Trump. And, a few of the things he tried, like DACA, greater use of prosecutorial discretion, stateside processing, etc. were starting make some headway in getting unnecessary litigation off Immigration Court dockets. They lost it all, however, by prioritizing recent arrivals from Central America, which threw the courts into unnecessary chaos.
Those of us who actually had to deal with the human side of this issue on a daily basis were left to pick up the pieces. Congress took a “Just Say No to Obama on Everything” policy. And, they got away with it. So, what we end up with is chaos and arbitrary enforcement. I wouldn’t expect a GOP-controlled Congress and Trump to fix anything. So far, they have been much more willing to stick it in the face of the many Americans who disagree with what they are doing than to work on constructive solutions.
I know you want Congress to do it. I suppose I do too, at some level. I think that the solutions you propose are definitely steps in the right direction. I wish someone would listen. But, I don’t think we are going to get constructive immigration reform as long as the GOP is in charge of everything. Just isn’t going to happen. Sad, but true. In the meantime, it’s likely that many judges at every level will have some of the same feelings as Judge Reinhardt had, at some times, whether they admit it or not.
Best,
Paul
Paul says, “Congress has failed. That’s where the Executive has stepped in. I agree with you that Congress has ceded far too much authority to the Executive, largely leaving it to the Courts to battle with the Executive on retaining some balance.”
I didn’t say that I think Congress has failed. They passed IIIRIRA, which caused problems by eliminating needed discretion, but you can blame Clinton in part for that. He not only signed the bill with IIRIRA in it, he made a statement at the signing ceremony praising the fact that we were going to have tough enforcement of our immigration laws.
When a law is passed by Congress and signed by a democratic president with praise for being tough on immigration laws, it’s a stretch to lay the blame at the feet of the republicans, which is what I think you mean by congress having failed.
Paul says, “I have criticized many of Obama’s policies. In many ways, he too got caught up in futile, unproductive, wasteful enforcement initiatives. But, at least Obama tried at some level to make sense of enforcement policy, quite unlike Trump. And, a few of the things he tried, like DACA, greater use of prosecutorial discretion, stateside processing, etc. were starting make some headway in getting unnecessary litigation off Immigration Court dockets. They lost it all, however, by prioritizing recent arrivals from Central America, which threw the courts into unnecessary chaos.”
I have a very different view on this too. If you are unhappy about the fact that it has been more than 30 years since the last comprehensive immigration reform bill was passed, by which I mean one with provisions for effective interior enforcement and legalization programs, you need to step back and try to see immigration enforcement from the perspective of the republicans.
The republicans don’t view aliens here unlawfully as being undocumented immigrants who are just waiting for the necessary documents to be issued to make them lawful. The republicans see them as illegal aliens. Whereas you want to help them, the republicans want to deport them.
The only way to strike a deal between those two extremes is with a wipe-the-slate-clean-and-start-over program, i.e., legalize the ones already here and enforce the law against all illegal aliens who come after some agreed up cutoff date. That was the basis for IRCA. It failed because the enforcement piece was never implemented.
And time has almost run out on getting the republicans to agree to that kind of a deal. Trump has found a way to deport millions of undocumented aliens without hearings simply by using the full expedited removal authority granted by IIRIRA.
The only bargaining point we have now is that Trump needs a lot of money for a number of things. If we can cooperate on enforcement prospectively and agree to legalization based on American needs (including LPR and citizen family unity), I think it is still possible. Unlikely, but possible.
Paul says, “Those of us who actually had to deal with the human side of this issue on a daily basis were left to pick up the pieces. Congress took a “Just Say No to Obama on Everything” policy. And, they got away with it. So, what we end up with is chaos and arbitrary enforcement. I wouldn’t expect a GOP-controlled Congress and Trump to fix anything. So far, they have been much more willing to stick it in the face of the many Americans who disagree with what they are doing than to work on constructive solutions.”
You are only looking at this from your own perspective. Try to see it from the republican perspective too. Then at least your comments will be relevant to them. Otherwise, you are just pleasing fellow liberal democrats without moving us closer to an agreement with the republicans.
Paul says, “I know you want Congress to do it. I suppose I do too, at some level. I think that the solutions you propose are definitely steps in the right direction. I wish someone would listen. But, I don’t think we are going to get constructive immigration reform as long as the GOP is in charge of everything. Just isn’t going to happen. Sad, but true. In the meantime, it’s likely that many judges at every level will have some of the same feelings as Judge Reinhardt had, at some times, whether they admit it or not.”
I have the opposite view. I think the republicans are far more likely to compromise than the democrats. In fact, I saw an example of this at the markup a few weeks ago on Labrador’s enforcement only bill.
Labrador came back after an adjournment of the markup and offered an amendment which addressed some of the complaints the democrats had made at the earlier segment of the markup.
Were they big changes? No. But they were significant and I think he made them in good faith in a spirit of wanting to cooperate.
Did the democrats thank him for starting negotiations on changing the bill to make it acceptable to both sides? No. They acknowledged that he was offering minor changes and then just told him why his offer was unacceptable.
I wasn’t trying to attribute the “Congress has failed” view to you, Nolan. That’s my view. I acknowledge that not everyone shares it.
Best,
Paul
Paul and Nolan:
It’s good to see Nolan talking more centrist, although I think both of you see this issue too much as GOP vs Democrats. What about the #neverTrump GOP? My Lincoln-Reagan Bushes 1 & 2 GOP? The centrist optimistic Emancipation, Liberation and Legalization wing that together with similarly inclined Democrats usually rules in our 2-party system.
The problem the GOP has is about 20% of its people who only vote GOP because they see it as the “White Man’s party”. LBJ predicted it when he signed the 1965 Civil Rights Act. GOP congressmen fear their wrath more than they fear Trump’s antics.
Although my head tells me that our immigration law mess is likely to remain a festering sore until a new Democratic majority in the House f Representatives, my optimistic New American heart keeps hoping for an unexpected burst of American pragmatism on immigration law before 2022 when the House of Representatives will be reapportioned ending the severe gerrymandering after the 2010 midterms.
We need is a legalization tourniquet until full safe surgery is possible. I understand that creating millions of second class citizens is both unconstitutional and unwise. But we can at least pass a simple bill allowing non-criminal undocumented immigrants apply for a renewable two or four year residency, during which they can go about building American lives openly, so a future Congress can examine practical options.
As to the present Congress, it can tackle the “Dreamers” now where there is consensus, not unanimity, but enough shared agreement to work with a discrete sympathetic population.
My anti-Trump revulsion kicked into overdrive when I watched that first rambling news conference when Trump called our free press the Stalin era expletive “enemy of the people”. “Fighting words for this old anti-Communist. He also emoted about having to decide the difficult question of the “beautiful” dreamers.
Difficult? Announcing that these new Americans would have residency in legislation he would submit to Congress ASAP would have gone a long view to restore faith in Trump’s good faith in immigration issues. Instead, he issued his first travel ban.
Part of the political problem is that the anti-immigrants insist that any legalization must bar future citizenship. A life sentence for a misdemeanor. And the pro-immigrants then insist on a specified “path to citizenship”, now. Future Democrat voters. Both are premature anyway because we have no consensus, or even need to fully resolve that issue now for future Americans. We need a legalization tourniquet ASAP, not immediate surgery with soiled instruments. We can reach a consensus without a new Civil War.
We can also add a specified deadline after the 2020 census for Congress to begin considering what to do with the newly legalized based on pertinent real facts, not “blood libel” anti-immigrant chain emails that have paralyzed Congress on immigration. Many GOP politicians in the past expressed support for legalization. I sincerely believe that the anti-immigrant Trumpites have overplayed their hand already.
I am confident that a future Congress reapportioned to reflect 21st Century USA will make better choices, and that the end result will resemble the spirit of the “Homestead Act of 1862” more, than it will resemble the “Fugitive Slave Act of 1854”. Meanwhile, I am also hopeful that the Supreme Court will avoid another “Dred Scott” decision affirming Trump’s authoritarian excesses.
Trump’s pile of BS doesn’t mean Santa left us a pony.
Authoritarian strict enforcement of vindictive anti-American laws most Americans don’t want is not the solution.
“Benevolent dictatorship”? No Nolan, what we defend is called limited government by a constitutional Democracy. It’s built into every constitutional provision, from specified powers for the Executive, Congress and the Judiciary, to the Bill of Rights, including internal limits between the Feds and the people as well between the Feds and the states in the 10th Amendment that specifically says:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
Enforcing laws as harshly as possible is not a virtue in a constitutional democracy. Article II of the Constitution commands the Executive to swear: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Article II doesn’t say, “execute strictly” all laws passed by Congress. It doesn’t say “execute without question” all laws passed by Congress. It says, instead, “faithfully” and immediately couches that command by defining it as preserving, protecting and defending the Constitution. And nowhere in the Constitution does it say the enforcing the INA Trumps the Constitution.
The Federal Courts have implicitly made a factual finding that Trump is lying about his intent for issuing the travel ban. And it’s not a fanciful finding. It is clearly evidenced by multiple public promises Trump made that one of his first actions as President would be a Muslim travel ban. Giuliani publicly admitted that was what Trump asked for. Making such factual determinations and then applying them in each case and controversy before them is exactly what the judiciary does.
Are responsible federal judges supposed to ignore the undisputed evidence that Trump’s travel ban was precisely what Trump promised he would do to the mobs at his political rallies? No doubt, Trump’s lack of credibility on immigration matters is a governing problem. But getting into a car with a drunk driver behind the wheel is also a problem. The fact that the drunk driver has a driver’s license doesn’t mean we should let him drive recklessly, let alone ride with him driving.
Trump is an unprecedented problem. We have had inept and misguided presidents before. But we have never had a president like Trump proud of his ignorance and authoritarian instincts. That problem will apparently continue in all issues as long as Trump continues behaving like a tin pot dictator. As well put by Jamelle Bouie:
“Trump’s actual problem, his temperament. Trump is ignorant, erratic, and largely disinterested in the details of governance. His contempt for the truth, domineering instincts, and preoccupation with loyalty are authoritarian-minded and ill-suited to a fundamentally democratic office, whose power depends on cooperating with other parts of government as much as it rests on its formal authority as articulated in the Constitution.
Even if Trump really were the businessman he claims to be…he would be in over his head at the White House…., Trump is a man of few skills and worse instincts, whose political problems are largely of his own making and who lacks the self-knowledge to correct the course of his flagging administration”.
Don’t blame Paul and I for pointing out forcefully that this would be Emperor has no clothes. It’s the American way.