BELOW THE RADAR SCREEN: Career Prosecutor Jonathan Fahey Quietly Installed As Head Of Office Of Principal Legal Advisor (“OPLA”) @ ICE

Jonathan Fahey
Jonathan Fahey
Principal Legal Advisor
ICE
Source: ICE Website

https://www.ice.gov/leadership

According to the ICE website, Jonathan Fahey is now the Principal Legal Advisor (“PLA”) at ICE. The “PLA” selects and supervises hundreds of ICE Chief and Assistant Chief Counsel who represent DHS in Immigration Courts nationwide as well as advises the Director of ICE and the Secretary of DHS on ICE legal matters.

Curiously, the prior PLA, Tony H. Pham is listed on the ICE website as “Senior Official Performing the Duties of The Director.” That’s bureaucratic gobbledygook for “Acting Director.” However, Fahey is not listed as “acting” in the PLA position. That leaves the question of exactly what Pham’s “official” position is these days.

Of course, it’s all part of a Trump regime “policy” of using “actings” and various related gimmicks to evade the Senate confirmation process and accompanying public scrutiny of senior political leadership at DHS. It also makes it easier for the White House to “lean on” and threaten, remove, or transfer senior officials because they lack the legitimacy and “political constituency” that comes from Senate confirmation. The ICE Director (formerly known as “Assistant Secretary”) requires Senate confirmation, the PLA does not. Incredibly, notwithstanding its “high visibility,” ICE has not had a duly appointed and confirmed Director during this Administration.

This ICE website doesn’t list Fahey’s bio. But, he’s no stranger to lawyers practicing in Northern Virginia. Here’s what Politico had to say when he joined ICE in April 2020:

DHS ARRIVAL LOUNGE — Jonathan Fahey is now a senior adviser at DHS. He previously was in the U.S. attorney’s office in the Eastern District of Virginia for 17 years, with a brief stint in 2018 as general counsel of the White House Office of National Drug Control Policy.

https://www.politico.com/newsletters/playbook/2020/04/16/trumps-impossible-adjourn-congress-bank-shot-488936

**************
Historical footnote: The DHS Chief Counsel program is the “direct descendent” of the “Legacy INS” Chief Legal Officer and later District Counsel programs that I helped establish as INS Deputy General Counsel (and occasionally Acting General Counsel) under the leadership of then INS General Counsel (now Immigration Judge) Dave Crosland and his successor the late Maurice C. “Iron Mike” Inman, Jr. Prior to that, INS Trial Attorneys were selected by the General Counsel, but were supervised and evaluated by the District Directors, actually their “clients.”

This ushered in the era of “independent legal advice” at INS, patterned on the “U.S. Attorney model.” Among other changes, it resulted in the appointment of many additional “Special Assistant U.S. Attorneys” (“SAUSAs”) from INS to assist with both civil and criminal litigation in the U.S. District Courts. It also resulted in the assignment of “Sector Counsel” to advise Border Patrol Chiefs. Additionally, a “failed power move” by the “Nelson/Inman/Schmidt Cabal” to take over the U.S. Circuit and District Court litigation from the DOJ Criminal Division, prompted the creation of the Office of Immigration Litigation (“OIL”) in the DOJ Civil Division, as well as the creation of EOIR as a separate entity to house the Immigration Courts and the BIA in 1983.

But, institutional change never comes easily, particularly at a place like the “Legacy INS.” I remember the first “Annual Commissioner’s Conference” during the tenure of the late Commissioner Al Nelson, held during the early months of the Reagan Administration. Perhaps the location was at the Federal Law Enforcement Training Center (“FLETC”) in Glynco, Georgia. In any event, it was in a “classroom-type setting.”

I found myself “in the pit” of an “amphitheater-type” classroom, the seats filled with super-irate INS District Directors and Regional Commissioners screaming that I had “stolen their attorneys.” Of course it’s always a bad idea to scream at the “loudest voice in the room” — me! So, I was shouting back at a decibel level that must of carried halfway to Atlanta!

Meanwhile, my “new boss,” “Iron Mike” was sitting in the first row alternately guffawing and shaking his head as I “aggressively defended” our policies and tried to explain how it would be a “win-win” for everyone. (It was! Eventually, almost everyone in the room was “lobbying” me for more lawyers, SAUSAs, and “personal assistance” in handling their never-ending legal problems).

Afterwards, Mike came up to me and said “Jesus, Schmidt, you managed to piss off and out-yell every manager in the country. Great job!”

Of course, “Iron Mike” was no slouch when it came to the “strategic yell” — once in a “Bobby Knight moment” sending one of our budget analysts into a fainting spell. “GENCO” in the “Time Iron Mike” wasn’t a place for the faint of heart!

And, of course his “favorite tactic” was to yell at me: “What did they teach you at that lefty law school in Madison?” No “Legal Executive Council” meeting was complete without us getting into least one “knock down drag ‘em out” in front of the “troops.” But, the relationship worked. We actually complemented each other and got a lot accomplished.

So, for better or worse (mostly seems like the latter, these days), I was one of the “Founding 
Fathers” of the modern DHS Chief Counsel/Assistant Chief Counsel system.

PWS

10-20-20

IT’S HERE! — IMMIGRATION HISTORY AT ITS BEST! — Months In The Making, The “Schmidtcast,” A 7-Part Series Featuring Podcaster Marica Sharashenidze Interviewing Me About My Legal Career “American Immigration From Mariel to Miller” — Tune In Now!

Marica Sharashenidze
Marica Sharashenidze
Podcaster Extraordinaire

Marica Sharashenidze

Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.

Hon. Paul Wickham Schmidt
Hon. Paul Wickham Schmidt
U.S. Immigraton Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

Judge (Retired) Paul Wickham Schmidt 

Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.  He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).  In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.

Here are links:

https://pws.transistor.fm/

https://feeds.transistor.fm/the-life-and-times-of-the-honorable-paul-wickham-schmidt

And here are some “Previews with links to each episode:”

 

Concluding Remarks

So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?

The Mariel Boatlift Crisis

The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.

The Refugee Act of 1980

The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.

The 1990s BIA

In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.

Creating EOIR

In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.

The Immigration Reform and Control Act

In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.

The Ashcroft Purge

Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.

 

You should also be able to search for the podcast on iTunes, Stitcher or Spotify just by searching “American Immigration From Mariel to Miller”.

************************

Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”  And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions. 

Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.

Happy listening!

Due Process Forever!

PWS😎

05-19-20

ERIC HOLDER, JR. @ WASHPOST: Former AG Blasts Chief Toady Billy Barr As Unfit For Office!

Eric Holder, Jr.
Eric Holder, Jr.
Former U.S. Attorney General

https://www.washingtonpost.com/opinions/eric-holder-william-barr-is-unfit-to-be-attorney-general/2019/12/11/99882092-1c55-11ea-87f7-f2e91143c60d_story.html

Opinions

Eric Holder: William Barr is unfit to be attorney general

12-12-19pastedGraphic_1.png

Attorney General William P. Barr in Washington on Tuesday. (Jacquelyn Martin/AP)

pastedGraphic_2.png

By Eric H. Holder Jr.

Dec. 11, 2019 at 9:13 p.m. EST

Eric H. Holder Jr., a Democrat, was U.S. attorney general from 2009 to 2015.

As a former U.S. attorney general, I am reluctant to publicly criticize my successors. I respect the office and understand just how tough the job can be.

But recently, Attorney General William P. Barr has made a series of public statements and taken actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office.

Last month, at a Federalist Society event, the attorney general delivered an ode to essentially unbridled executive power, dismissing the authority of the legislative and judicial branches — and the checks and balances at the heart of America’s constitutional order. As others have pointed out, Barr’s argument rests on a flawed view of U.S. history. To me, his attempts to vilify the president’s critics sounded more like the tactics of an unscrupulous criminal defense lawyer than a U.S. attorney general.

When, in the same speech, Barr accused “the other side” of “the systematic shredding of norms and the undermining of the rule of law,” he exposed himself as a partisan actor, not an impartial law enforcement official. Even more troubling — and telling — was a later (and little-noticed) section of his remarks, in which Barr made the outlandish suggestion that Congress cannot entrust anyone but the president himself to execute the law.

Sign up to receive op-eds like these in your inbox six days a week

In Barr’s view, sharing executive power with anyone “beyond the control of the president” (emphasis mine), presumably including a semi-independent Cabinet member, “contravenes the Framers’ clear intent to vest that power in a single person.” This is a stunning declaration not merely of ideology but of loyalty: to the president and his interests. It is also revealing of Barr’s own intent: to serve not at a careful remove from politics, as his office demands, but as an instrument of politics — under the direct “control” of President Trump.

Not long after Barr made that speech, he issued what seemed to be a bizarre threat to anyone who expresses insufficient respect for law enforcement, suggesting that “if communities don’t give that support and respect, they might find themselves without the police protection they need.” No one who understands — let alone truly respects — the impartial administration of justice or the role of law enforcement could ever say such a thing. It is antithetical to the most basic tenets of equality and justice, and it undermines the need for understanding between law enforcement and certain communities and flies in the face of everything the Justice Department stands for.

It’s also particularly ironic in light of the attorney general’s comments this week, in which he attacked the FBI and the Justice Department’s Office of the Inspector General — two vital components of his own department. Having spent the majority of my career in public service, I found it extraordinary to watch the nation’s chief law enforcement official claim — without offering any evidence — that the FBI acted in “bad faith” when it opened an inquiry into then-candidate Donald Trump’s campaign. As a former line prosecutor, U.S. attorney and judge, I found it alarming to hear Barr comment on an ongoing investigation, led by John Durham, the U.S. attorney in Connecticut, into the origins of the Russia probe. And as someone who spent six years in the office Barr now occupies, it was infuriating to watch him publicly undermine an independent inspector general report — based on an exhaustive review of the FBI’s conduct — using partisan talking points bearing no resemblance to the facts his own department has uncovered.

When appropriate and justified, it is the attorney general’s duty to support Justice Department components, ensure their integrity and insulate them from political pressures. His or her ultimate loyalty is not to the president personally, nor even to the executive branch, but to the people — and the Constitution — of the United States.

Career public servants at every level of the Justice Department understand this — as do leaders such as FBI Director Christopher A. Wray and Inspector General Michael Horowitz. Their fidelity to the law and their conduct under pressure are a credit to them and the institutions they serve.

Others, like Durham, are being tested by this moment. I’ve been proud to know John for at least a decade, but I was troubled by his unusual statement disputing the inspector general’s findings. Good reputations are hard-won in the legal profession, but they are fragile; anyone in Durham’s shoes would do well to remember that, in dealing with this administration, many reputations have been irrevocably lost.

This is certainly true of Barr, who was until recently a widely respected lawyer. I and many other Justice veterans were hopeful that he would serve as a responsible steward of the department and a protector of the rule of law.

Virtually since the moment he took office, though, Barr’s words and actions have been fundamentally inconsistent with his duty to the Constitution. Which is why I now fear that his conduct — running political interference for an increasingly lawless president — will wreak lasting damage.

The American people deserve an attorney general who serves their interests, leads the Justice Department with integrity and can be entrusted to pursue the facts and the law, even — and especially — when they are politically inconvenient and inconsistent with the personal interests of the president who appointed him. William Barr has proved he is incapable of serving as such an attorney general. He is unfit to lead the Justice Department.

*************************

Predictably, there were were a few right wing apologias for Billy. That included a remarkable fictional piece by reliable rightest toady and stout defender of autocracy Hugh Hewitt, also in the Post.  https://www.washingtonpost.com/opinions/2019/12/11/barrs-focus-abuses-by-fbi-is-entirely-warranted/

Since there is neither legal nor intellectual defense for the vicious attack on our institutions by Trump & Barr, in a misguided effort to “present both sides” of an “argument” where the facts all point one way, the Post has been reduced to giving space to disingenuous right wing hacks like Hewitt.

One the flip side, keeping track of all of the cogent criticisms of Toady Billy’s attacks on America and his own Department would be a full time job. One of the best of this huge field was by a group of former GOP DOJ leadership “alums” who ripped into Barr’s total lack of integrity. https://www.law.com/nationallawjournal/2019/12/10/former-justice-dept-leaders-slam-barrs-commentary-on-inspector-generals-report/

Here’s an excerpt from that article:

Jonathan Rose, who served under the Reagan administration as the assistant attorney general in charge of the Justice Department’s Office of Legal Policy, said the inspector general’s report “rebuts in detail the AG’s charge that the FBI’s investigation of the 2016 Trump campaign was unjustified, overly intrusive, or systematically suppressed exculpatory evidence.”

“This is the first attorney general in the history of presidential impeachment proceedings to enlist as a partisan warrior on behalf of a President. It is a sad day for those of us who revere the historic commitment of the FBI and the Department of Justice to even-handed law enforcement based on truth and verifiable facts,” said Rose, who had previously served under the Nixon administration as the deputy associate attorney general.

Donald Ayer, who served as deputy attorney general under the George H.W. Bush administration, said Barr’s reaction to the inspector general’s report was reminiscent of his handling of Special Counsel Robert Mueller’s report on the Russia investigation. Ahead of the Mueller report’s release, Barr came under criticism for mischaracterizing the report’s findings.

Ayer, a former Jones Day partner who now teaches at Georgetown Law, said the inspector general’s exhaustive investigation showed that the Russia investigation was “properly initiated based on a sound factual basis, and that the allegations of ‘witch hunt’ and bias on the part of those overseeing it are without foundation.”

“Rather than focus on those critical findings which should reassure all Americans, Barr dwells entirely on the report’s further findings that some agents (who he describes as a ‘small group of now-former’ FBI employees) were guilty of misconduct in the manner in which they put forward evidence in some submissions to the [Foreign Intelligence Surveillance Act] court,” Ayer said, referring to the secretive court tasked with weighing warrant applications filed under the surveillance law.

I personally knew and worked with both Jon Rose and Don Ayer. We were all partners at Jones Day’s D.C. Office in the 1990’s. 

We also all served in Senior Executive positions in the DOJ during the Reagan Administration. I knew Don better than Jon. I believe he adjudicated a grievance case that I was handling for the “Legacy INS” during my tenure as Deputy General Counsel. My recollection is that case was one of those stemming from the massive “Attorney Reorganization” that Mike Inman and I implemented to unite all INS Attorneys under the General Counsel’s supervision as part of the “Litigation and Legal Advice Offices,” the actual forerunners of today’s Offices of Chief Counsel at DHS!

Another of those cases actually reached a U.S. District Court in Pittsburgh where I was the Government’s “star witness.”  I was found “credible” by the District Judge in his ruling in favor of INS Management. 

However, admittedly, about 20 minutes into my answer to the Assistant U.S. Attorney’s first question, the Judge interrupted and said something like: “Counsel, could you instruct your witness to stop the history lesson and just answer the question asked?” Ah, the hazards of witnesses who “know too much.”

Of course, I also served at the DOJ under Eric Holder twice: once when he was the Deputy Attorney General during the Clinton Administration and again during his tenure as Attorney General under Obama.

PWS

12-12-19

HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!

https://immigrantjustice.org/sites/default/files/content-type/research-item/documents/2019-01/NIJC-Policy-Brief_Trump-Data-Manipulation_Jan2019.pdf

The Trump Administration’s Manipulation of Data to Perpetuate Anti-Immigrant Policies

The Trump administration regularly manipulates data to support its anti-immigrant agenda. Two weeks after President Trump shut down the federal government because Congress refused to approve funding to build a wall on the southern border, Homeland Security Secretary Kirstjen Nielsen presented a slideshow to the president’s Cabinet that was widely publicized for relying on inaccurate and heavily inflated numbers to create a sense of crisis in the border region.1 But it has long been a tried and true strategy for this administration’s agencies and government officials to misrepresent facts and figures and implement policy changes intentionally developed to gin up data points that prove a pre-established nativist narrative.

This policy brief describes how the administration has corrupted immigration data to fuel its anti- immigrant policy agenda. Particularly alarming examples include its manipulation of information and data to (I) undermine access to asylum; (II) exacerbate the due process crisis in the immigration courts; and (III) escalate the criminalization of migrants.

I. Crippling Asylum Access, then Touting Low Approval Rates

as Evidence of Fraud

The Trump administration made it nearly impossible for many people to get asylum, and now cites low grant rates to claim there are no legitimate asylum seekers.

The administration’s campaign to close the
border to asylum seekers began almost on
day one. President Trump’s February 2017
Executive Order on border security called for
higher standards for screening asylum
seekers’ fear of return.2 At the border,
Customs and Border Protection (CBP) has
intentionally reduced the processing of
asylum seekers at ports of entry3 and
doubled down on a so-called “metering”
system that numerically limits the number of
asylum seekers processed.4 Within the
immigration court system, Department of
Justice (DOJ) leadership has upended
longstanding case law to make it even more
difficult for survivors of gang-related and domestic violence to establish eligibility for asylum.5Unsurprisingly, these policies have shut off asylum protections for many applicants in need:

January 2019 immigrantjustice.org

page1image3823581328

under the Trump administration, denial rates for asylum applicants rose from 54.6 percent in fiscal year (FY) 2016 to 60.2 percent in FY 2017 and to 65 percent in FY 2018.6

The president and his Cabinet officials, after imposing such arbitrary obstacles to asylum, now claim that the resulting low asylum grant rates mean that most asylum seekers are here to “game the system,” as Acting Attorney General Matthew Whitaker recently stated after asserting that “only 20 percent of aliens have been granted asylum after a hearing before an immigration judge.”7 In his presidential proclamation attempting to ban certain migrants from asylum eligibility, President Trump stated that “only a fraction” of claimants at the southern border “ultimately qualify for asylum.”8

The fault in the president’s logic is so simple it’s easy to miss: the Trump administration made it nearly impossible for even the most bona fide refugee to obtain asylum, and now claims that applicants’ failures to win protection proves they filed applications for nefarious reasons. The administration is cynically using its own cruel policies to create facts designed to further more cruelty.

II. Distorting Immigration Court Representation and Appearance Data

The administration downplays the access to counsel crisis in our nation’s immigration courts, especially for children, and lies about the prevalence of non-appearance rates in immigration court.

Trump’s appointed officials frequently mislead Congress through incomplete and conflated data that obfuscates the due process crisis playing out every day in U.S. immigration courts. Most frequently, these misrepresentations downplay the critical importance of legal representation in immigration court proceedings and falsely suggest that the majority of immigrants do not appear for their scheduled immigration court hearings.

The DOJ Executive Office for Immigration Review’s (EOIR) own data shows that at least 60 percent of immigrant families in deportation proceedings appear for hearings, a statistic that rockets up to 98 percent when families are represented by counsel who can help them understand the court process.9 Among unaccompanied children, 67.6 percent overall and over 95 percent of minors with legal representation appear for their hearings.10

But in one recent hearing before the Senate Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee, EOIR Director James McHenry put forward several problematic representations of immigration statistics that

page2image3824653344

2

subverted this reality.11 At one point, McHenry cited statistics from a program whose scope is limited to providing children’s parents or sponsors a basic legal orientation to argue that providing full legal representation is ineffective in ensuring children’s appearance in court.12During the same hearing, McHenry also blatantly misrepresented court appearance data, testifying without evidence that children in immigration court proceedings appear in court only 53 percent of the time.13

The president’s mischaracterization of this data has been even further removed from reality, including unsubstantiated claims that immigrants “never show up [to court], it’s like a level of 3 percent. They never show up for the trial.”14

Obfuscation about representation and appearance rates in immigration court is particularly harmful given how powerfully the deck is already stacked against immigrants in deportation proceedings. Although U.S. Immigration and Customs Enforcement (ICE) is represented in each proceeding by its own federal counsel, there is no right to counsel for indigent immigrants who cannot afford private representation. Nationally, only 37 percent of all immigrants and only 14 percent of detained immigrants are represented in their immigration court proceedings.15Representation is a particularly critical due process safeguard in immigration court, where people face life-altering consequences and need an expert in the law by their side to ensure they understand how to comply with complex court processes.16 Immigrants with attorneys are five times more likely to win their cases than those without attorneys.17 For detained immigrants, it can be nearly impossible to even present a case without counsel; those with attorneys are 11 times more likely to be able to seek a defense to deportation.18

III. Increasing Prosecutions to Inflate the Number of So-Called

“Criminal” Immigrants

The administration employs both the criminal justice and deportation systems to target immigrants, using its discretion to increase already sky-high prosecutions of immigrants and subsequently touting increased convictions to demonize immigrants.

The Trump administration is quite literally creating its own crime statistics by making it impossible for asylum seekers to present lawfully at ports and then choosing to prosecute as many people as possible for crossing the border elsewhere to request protection. In April 2017, the DOJ announced it would prioritize the prosecution of migration-related offenses,19a jarring announcement in light of the fact that migration-related prosecutions already constituted more than half of all federal prosecutions when the Trump administration took office.20 A year later, DOJ established a

page3image3821741856

3

“zero-tolerance” policy, whereby U.S. Attorneys Offices at the southwest border were instructed to prosecute all migrants entering between ports of entry under 8 U.S.C. § 1325, improper entry.21

Zero tolerance led to a spike of prosecutions along the southwest border, with a 30 percent increase from the month prior to the announcement of the policy.22 As Acting Attorney General Matthew Whitaker recently noted, in FY 2018, DOJ charged 85 percent more immigrants with unlawful entry than in FY 2017, and increased felony reentry prosecutions by over 38 percent.23Fueling the zero-tolerance policy was the administration’s concerted blockading of the southern border through illegal turnbacks and so-called “metering” of asylum seekers at ports of entry, both still ongoing, forcing many asylum seekers desperate to reach the safety of the United States to attempt to enter between ports.24

The administration utilizes the statistics resulting from these policies to conflate notions of criminality and immigration status in its policy and rhetoric. ICE routinely touts the high percentage of immigration-related criminal arrests and deportations that involve immigrants who enter outside a port of entry, yet increasingly these statistics reveal the extent to which the administration is cooking the books by driving up the rates of migration-related offenses. Most recently, in ICE’s FY 2018 data release, the agency specifically highlighted arrests of immigrants by “Criminality,” arguing that “the largest percentage of aliens arrested by ICE are convicted criminals (66 percent).” Of the categories of underlying criminal conduct, however, immigration-related offenses ranked as third with 51,249 immigrants.25 Similarly, CBP highlights immigrants convicted of both entry and reentry offenses, with statistics as of August 2018 demonstrating they were the leading type of convictions for so-called “criminal aliens,” representing 41 percent in FY 2017 and 47 percent of all convictions in the first eight months of FY 2018.26 While the administration frames these statistics to argue that migrants have become a greater threat, the story they really tell is of a federal agency that has become obsessed with punishing people for crossing the border.

Conclusion

The use of official government resources to paint groups of people as undesirable or criminal mirrors strategies employed by authoritarian regimes throughout world history who have sought to consolidate power, effectuate anti-democratic agendas, and provide a pretext for persecution. During World War II, the Nazi regime published a list of supposed crimes committed by the Jewish population.27 Russia’s current authoritarian regime regularly employs the criminal justice system to prosecute and convict LGBTQ individuals.28 Scapegoating minorities is one of the time-tested tools for dictators.29

Through data manipulation, the Trump administration is deftly employing the various levers of government to implement inherently flawed policy that criminalizes immigrants, subsequently touting that criminalization to vilify them. Collaterally, the administration manipulates or misrepresents data to impugn immigrants and their families as criminals who are undeserving of protection. The endgame is apparent—to build a foundation to enact policies that erode due process, increase incarceration of communities of color, and strip legal protections from immigrants. Congress and other stakeholders must hold this administration accountable and

4

ensure that its anti-immigrant policies are not justified through the use of data or policy inherently designed to undermine basic human and civil rights.

Acknowledgments

This policy brief was authored by Jose Magaña-Salgado for the National Immigrant Justice Center. NIJC’s Heidi Altman and Tara Tidwell Cullen contributed to the report.

For questions, contact NIJC Director of Policy Heidi Altman at (312) 718-5021 orhaltman@heartlandalliance.org.

Endnotes

1 Philip Bump, “The administration is using heavily inflated numbers to argue for a border wall,” Washington Post, Jan. 4, 2019, https://www.washingtonpost.com/politics/2019/01/04/administration-is-using-heavily-inflated-numbers- argue-border-wall/?utm_term=.c72735337b9c.
2 Border Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793, Jan. 25, 2017, https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration- enforcement-improvements.
3 Hamed Aleaziz, “The Trump Administration is Slowing the Asylum Process to Discourage Applicants, an Official Told Congress,” BuzzFeed, Dec. 17, 2018, https://www.buzzfeednews.com/article/hamedaleaziz/the-trump- administration-is-slowing-the-asylum-process-to.
4 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download. This opinion is currently subject to litigation, with a preliminary, nationwide injunction in place as of December of 2018. Lauren Pearle, “Judge blocks Trump administration efforts to restrict asylum for migrants fleeing domestic and gang violence,” ABC News, Dec. 20, 2018, https://abcnews.go.com/Politics/judge-blocks-trump-administration-efforts- restrict-asylum-migrants/story?id=59913629; Grace, et al., v. Whitaker, No. 18-CV-01853 EGS (D.D.C. Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-opinion. See also Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), https://www.justice.gov/eoir/page/file/1040936/download (undermining the right to an evidentiary hearing for asylum applicants).
6 TRAC Immigration, Asylum Decisions and Denials Jump in 2018, Nov. 29, 2018,http://trac.syr.edu/immigration/reports/539/.
7 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration. Asylum denials often have life and death consequences for individuals, with deported asylum seekers facing persecution and even death in their home countries. See Jaya Ramji-Nogales , Andrew I. Schoenholtz and Philip G. Schrag, Refugee Roulette, Disparities in Asylum Adjudication and Proposals for Reform, 2009; Sarah Stillman, “When Deportation is a Death Sentence,” The New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a- death-sentence (documenting the harms awaiting immigrants deported back to their home countries, including violent deaths).
8 Proclamation No. 9822, 83 Fed. Reg. 57,661, Nov. 15, 2018,https://www.federalregister.gov/documents/2018/11/15/2018-25117/addressing-mass-migration-through-the- southern-border-of-the-united-states.
9 Human Rights First, Myth v. Fact: Immigrant Families’ Appearance Rates in Immigration Court, July 31, 2016,https://www.humanrightsfirst.org/resource/myth-vs-fact-immigrant-families-appearance-rates-immigration-court.
10 American Immigration Council, Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court, May 16, 2016, https://www.americanimmigrationcouncil.org/research/children-immigration-court-over-95- percent-represented-attorney-appear-court.
11 Permanent Subcommittee on Investigations, Homeland Security & Governmental Affairs Committee, U.S. Senate,Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse, Aug. 16, 2018,https://www.hsgac.senate.gov/subcommittees/investigations/hearings/oversight-of-efforts-to-protect-unaccompanied- alien-children-from-human-trafficking-and-abuse.

12 Id. (exchange begins at 1:36:40). In this same hearing, Director McHenry also cited an EOIR-produced statistic that the “representation rate for UACs [unaccompanied immigrant children] in proceedings . . . whose proceedings have been pending for over a year is already 75 percent.” By focusing on representation for unaccompanied minors with cases pending for a year or more, Director McHenry excluded representation rates for cases completed in less than a year, namely cases where a judge ordered a minor deported in absentia (e.g. without the minor’s presence in the court) precisely because the minor did not have representation. See Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum 15, Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project, 2018, https://cliniclegal.org/sites/default/files/Denied-a-Day-in-Court.pdf. Looking at impartial data regarding representation rates provides a more sobering picture; as of November 2018, only 48 percent of unaccompanied minors had representation, regardless of how long their case had been pending. See Juveniles — Immigration Court Deportation Proceedings, TRAC Immigration, Nov. 2018,http://trac.syr.edu/phptools/immigration/juvenile.

13 McHenry Testimony, supra note 11, at 1:47:10.
14 Linda Qiu, “Trump’s Falsehood-Laden Speech on Immigration,” The New York Times, Nov. 1, 2018,https://www.nytimes.com/2018/11/01/us/politics/fact-check-trump-immigration-.html.
15 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
16 Id.
17 Id.
18 Id.
19 Office of the U.S. Attorney General, Memorandum for all Federal Prosecutors, “Renewed Commitment to Criminal Immigration Enforcement,” Apr. 11, 2017, https://www.justice.gov/opa/press-release/file/956841/download.
20 TRAC Immigration, Immigration Prosecutions for December 2016, June 4, 2018,http://trac.syr.edu/tracreports/bulletins/immigration/monthlydec16/fil/; Cristobal Ramon, Federal Prosecutions of Illegal Immigrants, Bipartisan Policy Center, Mar. 27, 2018, https://bipartisanpolicy.org/blog/the-prosecution-pipeline/.
21 Office of the U.S. Attorney General, Memorandum for Federal Prosecutors along Southwest Border, “Zero- Tolerance for Offenses Under 8 U.S.C. § 1325(a),” Apr. 6, 2018, https://www.justice.gov/opa/press- release/file/1049751/download.
22 TRAC Immigration, Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April, June 4, 2018,http://trac.syr.edu/immigration/reports/515/.
23 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration.
24 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
25 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Fiscal Year 2018 ICE Enforcement and Removal Operations Report , Dec. 14, 2018,https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf.
26 U.S. Customs and Border Protection, U.S. Department of Homeland Security, Criminal Alien Statistics – FY 2018(Oct. 23, 2018), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics.
27 Amanda Erickson, “Adolf Hitler also published a list of crimes committed by groups he didn’t like,” The Washington Post, Mar. 2, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/03/02/adolf-hitler-also-published-a- list-of-crimes-committed-by-groups-he-didnt-like/ (“There’s a reason Trump’s opponents are so worried. This strategy — one designed to single out a particular group of people, suggesting that there’s something particularly sinister about how they behave — was employed to great effect by Adolf Hitler and his allies. In the 1930s, the Nazis used a similar tactic to stir up anger and hatred toward Jews.”).
28 The Council for Global Equality, The Facts on LGBT Rights in Russia, accessed Jan. 2, 2019,www.globalequality.org/component/content/article/1-in-the-news/186-the-facts-on-lgbt-rights-in-russia.
29 Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, 2012.

Images from The Noun Project. Credits: Robbe de Clerck, Adrien Coquet, Luis Prado, and SBTS

*****************************************************

It’s time for some House Oversight of the ridiculous mess at EOIR and the lies, fabrications, and intentional distortions that support the restrictionist enforcement agenda of what once purported to be a “court system” but now is a “CINO” (“Court in Name Only”) — an unapologetic adjunct of DHS Enforcement (their “partner” according to the now departed Sessions). Amazingly, it’s actually much worse than the dysfunction that led to the removal of the Immigration Courts from the “Legacy INS’ and establishment of a supposedly “independent” EOIR within DOJ in the first place, in 1983.

 

Then, I don’t think INS was intentionally falsifying anything or carrying out a political agenda in the Immigration Courts. Honestly, the “Legacy INS’ was simply ethically and administratively incompetent to run a due process court system.

 

But, to the credit of all involved during the Reagan Administration, including then Commissioner Al Nelson and General Counsel “Iron Mike” Inman, we recognized the problem and acted to solve it. We also saw that a “level playing field” and a more independent Immigration Court would gain credibility with the Article III courts, which would benefit INS enforcement. We even got then Associate Attorney General Rudy Giuliani to endorse the “divestiture program.”

 

Although the first Director of EOIR, David Milhollan, who was also the BIA Chair, and the first Chief Immigration, Judge William R. Robie, were both stalwart Republicans, neither brooked interference from “Main Justice” with their operations. They were particularly proud and assertive of their independence from INS. Indeed “we’re not INS” became the “mantra” of the “early EOIR.”

 

Milhollan, having moved EOIR Headquarters across the river to Falls Church, VA more or less hoped that at some point DOJ would forget that EOIR every existed. He occasionally sent a little “excess money downtown” to ensure that the “Main DOJ” and the Attorney General would have only “kind thoughts” about EOIR and would otherwise leave him alone. Up to a certain point, it worked.

 

Sadly, for all of its original promise and development during its first two decades, the “EOIR Experiment” has turned out to be a disastrous failure. It’s quite painful for those of us who devoted large chunks of our professional lives and emotionally invested in the effort to make EOIR a “real” court.

 

The idea that a court system can operate independently and provide fairness, impartiality, and due process within the now thoroughly politicized DOJ is simply a non-starter. It’s basically a “return to the Nixon Administration” which is where I came in, with the hope of “learning the ropes” and eventually being able to help in some small way to create “good government” and a better America.

 

Unfortunately, a divided Congress and an Administration bent on destroying our Constitution and democratic institutions are unwilling and/or unable to put “Eyore” out of its misery. That means that innocent lives will continue to be wrongfully destroyed and Constitutional Due Process mocked until the next generation can put the “malicious incompetence” of Trumpism behind us and advance our nation and the world to a better, fairer, more realistic and inclusive future. That’s what the “New Due Process Army” is all about!

 

PWS

 

02-15-19

 

FORMER BORDER AGENT DECRIES “CULTURE OF DEHUMANIZATION” — “What happened to Jakelin is not an aberration, but rather the predictable outgrowth of the dehumanizing practices that define U.S. border policy. “

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=260e391c-8096-4f5b-8c8a-51ca0171aa2d

Former USBP Agent Francisco Cantu writes in the LA Times:

Ever since the U.S. Border Patrol admitted that Jakelin Ameí Rosmery Caal Maquin, a 7-year-old Guatemalan girl seeking asylum with her father, had died in their custody, government officials have been trying to deflect blame for her death.

What is clear so far, according to news reports, is that Jakelin and her father turned themselves in to Border Patrol agents on Dec. 7 along with 163 other migrants in the New Mexico desert. According to a Department of Homeland Security incident report, they were screened at a remote substation and found to be in good condition. DHS cannot confirm whether Jakelin consumed food or water at the facility, but eight hours later, she became “feverish and vomiting” on a transport bus headed for the Lordsburg Border Patrol station. She was met by Border Patrol emergency medical technicians who twice revived her, recorded her temperature at 105.9 degrees and called for a helicopter to El Paso’s Providence Children’s Hospital, where she died about 27 hours later.

The U.S. government claims Jakelin had journeyed for days through the desert without food and water and was beyond help before she was taken into custody. However, her father says he saw to it that she was eating and drinking. The president of the American Academy of Pediatrics says her death was without doubt preventable. But Department of Homeland Security Director Kirstjen Nielsen blames the victim in this “heartwrenching” story: “This family,” she said on Friday, “chose to cross illegally.”

A Customs and Border Protection spokesman insisted to the Washington Post that “Border Patrol agents took every possible step to save the child’s life under the most trying of circumstances.” That may well be technically true. But even if individual Lordsburg agents rushed to save Jakelin’s life, it won’t erase another truth: The institutional culture of the Border Patrol regularly dismisses even the most basic needs of detained migrants.

In early 2009, when I arrived at my first Border Patrol duty station in Arizona, I was assigned to a training unit and placed under the supervision of senior agents selected to coach newcomers like me. When I read about Jakelin’s death, I couldn’t help but recall the night our training unit first apprehended a group of migrants.

My memories from this night are not precise. I remember the group of migrants was small, maybe eight to 10 people, all of them adult males. We picked them up in the open desert not far from the area’s lone highway, and I can no longer recall how long they had been walking or how many days they might have been without food or water.

What I do remember with certainty is what happened at the processing center. The men had noticed that I spoke fluent Spanish and asked me for water. I went to a nearby storeroom, grabbed a case of bottled water, and was about to walk through the door to the processing room when one of my training agents blocked the way.

What are you doing? she asked me. I told her I was bringing water to the group we brought in. They’ll be fine, she said, come join us in the computer room. But they asked for water, I said, gesturing at the door. It wouldn’t have taken more than a second for me to drop off the water.

Her face and tone changed. Leave it, she ordered, “They’ll live.”

As strange as it may sound, I don’t remember if I obeyed her or what I ended up doing with the water, but I never forgot the message I was given that night: Don’t dare be soft.

Senior agents like her lamented the end of the “old patrol” when migrants weren’t so “coddled” and agents could get away with “tuning up” detainees who got out of line. Callousness toward migrants is evident even in the language agents use to refer to them: “aliens,” “illegals,” “bodies” or “toncs” (a term with disputed origins, which some say means “temporarily out of native country,” though others say it alludes to the sound of a Maglite hitting a migrant’s skull).

As agents-in-training, we were taught to carry ourselves as hardened law enforcers and to treat migrants as lawbreakers. We were told to regard migrant requests with suspicion — if they asked for something or complained, they were likely trying to take advantage of us. We were meant to offer our captives the bare minimum and pass them on like a hot potato — field agents passed migrants to transport agents, who passed them to processing agents, who passed them to bus contractors, who passed them to sector headquarters, where they would be immediately deported or thrust into the immigration detention system.

After more than a year of working as a field agent, I signed up for emergency medical technician training. When I was called to help, agents usually described a migrant’s situation with dismissal and annoyance: This one keeps complaining about blisters, this one claims she needs medication, this one won’t shut up about seeing a doctor. Migrants, the thinking went, always bore responsibility for their own misfortune — an attitude echoed in Nielsen’s insistence last week that Jakelin’s family “chose to cross illegally.”

There will be an investigation into Jakelin’s death, but in broad terms its causes are clear enough: heedlessness, a lack of compassion, poor accountability at the border. Since January 2010, San Diego’s Southern Border Communities Coalition has cataloged at least 81 deaths at the hands of U.S. border agents, and since 2000, more than 6,000 have died as a result of “deterrence” policies that force migrants to cross in remote and dangerous areas, like the one Jakelin and her father passed through.

What happened to Jakelin is not an aberration, but rather the predictable outgrowth of the dehumanizing practices that define U.S. border policy. It will not be enough to conduct an audit of the Lordsburg Border Patrol station and shuffle its hierarchy, or to increase the ranks of Border Patrol EMTs and give them pediatric training. We must demand, instead, that the entire culture of cruelty that underlies our border enforcement system be remade.

Francisco Cantú was as an agent for the U.S. Border Patrol from 2008-12. He is the author of “The Line Becomes a River: Dispatches From the Border.”

********************************************

I represented the Border Patrol for a number of years at the “Legacy INS” when I was the Deputy General Counsel and Acting General Counsel. Among other things, I taught Search and Seizure Law at the Border Patrol Academy and visited a number of Border Patrol Stations. I rode along on patrol, flew in helicopters, walked the border at night, even went off the tower on a zip line during one basic training session at Ft. Polk.

Overall, I enjoyed working with the agents. I thought they were dedicated and hard-working, doing a largely thankless job for which they received insufficient salary and credit, and overall doing it well. I learned from hearing their stories and questions based on “law in action.”

One of the things that the late INS General Counsel “Iron Mike” Inman and I achieved was starting a “Sector Counsel” program in some of the busier sectors so that the agents could get some “on site” legal advice and assistance dealing with U.S. Attorneys and Federal Courts.

That’s not to say that there were no “bad moments.”  I did notice an overall “lost battalion” mentality, particularly among some of the older supervisors.  Their attitude toward me and my colleagues in the Legal Program probably fluctuated with how much trouble they were in and how much they needed our help to bail them out.

I remember one particularly tense moment visiting a station where some of the officers were under investigation for Civil Rights violations. I accepted their offer of a cup of coffee. When the agent left the room to get it, my friend and then Western Regional Counsel the late Bill Odencrantz whispered: “I wouldn’t drink that if I were you, Schmidt.”

I also recognized that patterns of behavior were probably different when “visitors from headquarters” were there. Undoubtedly, we saw and heard what they wanted us to see and hear when we were riding in the patrol cars, flying in helicopters, or looking through surplus Vietnam era “infrared night scopes” at the folks crossing the border.  And, I do remember hearing the second of the two definitions offered by Cantu for the term “toncs.” I think it actually came up in connection with one of the internal investigations in which I was involved.

As I judge, I tended to view the Forms I-213, “Reports of Deportable Alien,” from CBP with “healthy skepticism,” knowing the pressures and conditions under which they were prepared. I also observed over time that many of them said the same things in the same words, much like the “canned paragraphs” that my colleague the late Judge Lauri Steven Filppu used to rail against during my time at the BIA.

As with ICE, in the future there needs to be better professional leadership and training at CBP, as well as a more focused mission. “Culture change” is critical to an effective, cost-efficient, humane, and professional immigration enforcement strategy.  However, my experience is that such “culture change,” while not impossible, is a “hard nut to crack,” even under the best of circumstances.

It won’t be achieved simply by “messages from on high.” And, it certainly isn’t going to come under a leader who constantly sends racially charged xenophobic messages and encourages false narratives, dehumanization, and White Nationalism.

PWS

12-18-18

 

 

THE HILL: NOLAN SAYS THERE IS A BETTER WAY TO ADDRESS PROBLEMS AT ICE

http://thehill.com/opinion/immigration/395646-theres-a-better-response-to-abuse-than-abolishing-ice

Family Pictures

Nolan writes:

. . . .

ERO shouldn’t terrorize anyone, but it has to be able to arrest deportable aliens where they can be found.

The main reason for wanting to abolish ICE is likely to prevent undocumented aliens who are here for a better life from being deported.

But if ICE were to be abolished, its responsibilities would be assigned to another agency and Trump would require the new agency to implement the same policies.

Trump’s enforcement policies

President Barack Obama focused his immigration enforcement programprimarily on aliens who had been convicted of crimes in the United States, had been caught near the border after an illegal entry, or had returned unlawfully after being deported.

Once an undocumented alien had succeeded in crossing the border without being apprehended, he did not have to worry about being deported unless he was convicted of a serious crime. He was home free.

This created a “home free magnet” which encouraged more undocumented aliens to come and do whatever they had to do to cross the border.

Trump acknowledged this problem in his Executive Order, Enhancing Public Safety in the Interior of the United States:

“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”

He directed DHS “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”

Nevertheless, he prioritized removing aliens who are inadmissibleon criminal and related grounds, on security and related grounds, and for misrepresentations, or who are deportable for criminal offenses or on security and related grounds, and removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense, where such charge has not been resolved;
  • Have committed acts that constitute a criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or government application;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal but have not left the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

ERO officers are free to arrest aliens who are not in a prioritized category, but this wouldn’t be happening often if sanctuary policies had not required ERO officers to change their enforcement operations.

Sanctuary policies prevent local police departments from turning inmates over to ERO when they are released from custody, so ERO is spending more of its time looking for deportable aliens in communities. This resulted in arresting 40,000 noncriminal aliens in FY 2017.

But ERO should not be engaging in improper behavior to make these or any other arrests.

DHS has provided avenues for public feedback and complaints, and ICE has Community Relations Officers at every field office.

If you see an ICE officer doing something improper, report him. This is far more likely to improve the situation than calling for the abolishment of ICE.

*****************************************

Go on over to The Hill at the link for Nolan’s complete article.

  • I agree with Nolan that ICE isn’t going anywhere under Trump.
  • I also agree that the essential functions of ICE will still need to be performed, regardless of the ultimate fate of the organization.
  • I think it’s great that the “Abolish ICE Movement” has focused more attention on the cruel, unnecessary, and highly counterproductive enforcement and prosecutorial policies of ICE under Trump.
  • Indeed, the counterproductive nature of the Trump/Sessions immigration enforcement is a major reason why a group of Senior ICE Agents who actually perform real law enforcement functions — anti-smuggling, anti-human trafficking, immigration fraud, anti-terrorism —  want to ditch the ICE label, because they know it’s inhibiting cooperation with other agencies and communities and thereby diminishing real law enforcement.
  • Most true law enforcement professionals that I have known don’t want to be associated with a group that glorifies cruelty and de-humanizes ordinary people. Having ICE on your resume today wouldn’t be a plus for most folks interested in a legitimate law enforcement career.
  • While the “essential functions” of ICE will continue, lots of today’s ICE enforcement has little to do with “essential enforcement.” The latter would be targeted at criminals, fraudsters, spouse abusers, traffickers, and recent arrivals who don’t have applications pending.
  • The lack of any semblance of common sense and responsibility in ICE’s abusive refusal to exercise prosecutorial discretion and actually putting properly closed cases back on the docket is a major contributor to the absolute mess in today’s Immigration Courts.
  • It’s also a reason why the Immigration Court mess is unlikely to be solved until Congress, the courts, and/or some future Executive force some fundamental changes in ICE enforcement and prosecutorial policies to reflect the same type of prudent, respectful, and realistic use of judicial time and prosecutorial discretion that is employed, to some extent, by every other major law enforcement agency in the U.S.
  • It never hurts to complain. I’m a big fan of making a “running record” of misconduct.
  • But, in the Trump Administration a record is about all you’ll get. Nothing is going to be done to correct misconduct because misconduct comes from the top.
  • My experience with ICE Chief Counsel’s Office in Arlington was highly positive. The attorneys were overwhelmingly fair, smart, responsive, respectful, and part of the “team” with the private, bar, the courts, and the interpreters that made the justice system work in Arlington in the past.
  • Indeed, working with the Arlington Chief Counsel’s Office made me proud to have led the major reorganization that established the forerunner to the “Modern Chief Counsel System” at the “Legacy INS” during the Carter and Reagan Administrations. The Arlington Chief Counsel’s Office was exactly what former General Counsels Dave Crosland, Mike Inman, Regional Counsel Bill Odencrantz, and I had envisioned when we planned and carried out the reorganization (over considerable internal opposition, I might add).
  • My overall experiences with the officers of ICE and it’s forerunner INS Investigations were positive. I found and worked with plenty of capable, dedicated, professional, and humane officers during my decades of dealing with immigration enforcement in some form or another.
  • All of that suggests that the major problems in ICE have arisen almost entirely under the Trump Administration. That’s because of truly horrible leadership from the top down.
  • ICE won’t improve until we get “regime change.” When that happens, ICE will have to be reorganized, reinvented, and “rebranded.” Professional management — one that pays particular attention to its relationship to local communities — must be reestablished. Sane enforcement and prosecutorial discretion policies will  have to be reinstated.
  • My experiences with ICE suggest that the right people to lead an “ICE-type” agency in the future are likely already somewhere in ICE. They just aren’t in the right leadership and management positions. Maybe they will all quit before the end of the Trump Administration If not, they could serve as a “professional core” for rebuilding and reforming ICE.
  • I’m skeptical that so-called “Catch and Release” has a significant effect on what’s happening on the Southern Border.
  • In the first place, the current situation is “a self-created crisis” initiated by Trump & Sessions. Otherwise it’s pretty much normal migration.
  • Seeking asylum at the border isn’t “illegal migration” at all. It’s asserting an internationally recognized right. Detention and family separation are not appropriate responses to individuals seeking in good faith to exercise their rights.
  • In any event, the primary drivers of migration outside the visa system are: 1) unmet needs of the U.S. labor market, and 2) political, social, and economic conditions in foreign countries. So-called “Catch and Release” has no established effect on either of these “drivers.” See, e.g., https://www.migrationpolicy.org/news/crisis-border-not-numbers.

PWS

07-08-18

HON. JEFFREY CHASE: MORE INTERNAL EVIDENCE OF POLITICIZED HIRING AND UNNECESSARY DELAYS UNDER SESSIONS AS EOIR APPEARS TO JOIN TRUMP’S “WAR ON THE CAREER CIVIL SERVICE” BY ATTACKING THE CAREER PROMOTION SYSTEM FOR BIA ATTORNEY ADVISORS!

https://www.jeffreyschase.com/blog/2018/5/27/eoirs-hiring-practices-raise-concerns

EOIR’s Hiring Practices Raise Concerns

In response to a whistleblower’s letter from within EOIR, ranking Senate Democrats have requested an investigation into improper political influence in EOIR’s hiring criteria for immigration judges and members of the Board of Immigration Appeals.  https://democrats-judiciary.house.gov/news/press-releases/top-dems-request-inspector-general-investigation-allegations-illegal-hiring.  Following up on an April 17 letter to Attorney General Sessions, the Democratic leaders on May 8 stated that in subsequent weeks, more whistleblowers have come forward to corroborate the delaying or withdrawal of IJ appointments to candidates whose political views are not believed to align with those of the present administration.

There seems to be little if any doubt among EOIR employees that this is in fact happening.  The resulting slowdown in IJ hiring is further exacerbating the huge backlog of cases plaguing the immigration courts.  There are presently no judges sitting in the Louisville, Kentucky immigration court; other courts are simply understaffed.  In what my friend and fellow blogger Hon. Paul W. Schmidt has termed “ADR” (Aimless Docket Reshuffling), sitting IJs are being detailed to hear cases in courts with vacancies, forcing the continuance of cases on their own dockets, some of which have been waiting two or more years for their day in court.

It was just under 10 years ago that a 140 page report of the Department of Justice’s Office of the Inspector General found similar wrongdoing in the hiring of IJs under the Bush administration.  https://oig.justice.gov/special/s0807/final.pdf That report noted at p.135 that “both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.”  That investigation found that such policy and law had been violated, and included recommendations to prevent a future recurrence of such improper conduct. Then as now, the slowdown in IJ hiring caused by the improper political screening of candidates compromised EOIR’s mission (in the words of the agency’s Director at the time, at p.96), and contributed to the growing case backlog.

In another employment-related development that has drawn little public notice, the Department of Justice on May 17 posted a hiring ad for 38 vacant staff attorney positions at the BIA.  The twist is that for the first time, the positions were advertised as being entry level grade positions with no potential for promotion.

EOIR Director James McHenry had hinted since his appointment that he believed BIA attorney positions should be downgraded.  There is something disingenuous about such statement. I can think of at least three immigration judges who were appointed to the bench directly from their positions as non-supervisory BIA staff attorneys.  Two of the four temporary BIA Board Members at present are long-term BIA staff attorneys. The present BIA chairperson, David Neal, previously served as a Board staff attorney for 5 years, a position that apparently qualified him to directly become chief counsel to the Senate Immigration Subcommittee.  Nearly all of the BIA’s decisions, including those that are published as precedent binding on the agency and DHS, are drafted by its staff attorneys. Some of those attorneys have accumulated significant expertise in complex areas of immigration law. A number of Board staff attorneys have participated as speakers at the immigration judge training conferences.

The question thus becomes: how are experienced attorneys who are deemed qualified to move directly into immigration judge and BIA Board Member positions, to craft precedent decisions and to train immigration judges only deemed to be entry level, non-career path employees?

There has been much attention paid to the nearly 700,000 cases pending before the nation’s immigration courts.  As the agency moves to hire more judges and limit continuances, and recently had its power to administrative close cases revoked by the AG, the number and pace of cases appealed to the BIA will speed up significantly.  It would seem like a good time for the BIA to be staffed with knowledgeable and experienced staff attorneys. Instead, the agency’s move essentially turns new BIA attorney hires into short-term law clerks.  New attorneys undergo a full year of legal training to bring them up to speed to handle the high volume and variety of complex legal issues arising on appeal. However, attorneys are unlikely to remain in such positions for much more than a year without the possibility of promotion.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

As an Attorney-Manager and Government Senior Executive, I always had high expectations for the professionals working for me, which they achieved in the vast, vast majority of cases. My experience told me that everyone had their strengths and weaknesses and that it was the job of a good manager to find ways for everyone to succeed whenever possible.
If I do say so myself, I believe that I was good at finding the right “sweet spots” for folks to “be the best that they can be.” And, I’ll freely acknowledge getting some of my ideas from watching the late “Legacy INS” General Counsel Mike Inman operate. Whatever else one might think or say about “Iron Mike,” he did have an “eye for talent.” He also could take people who seemed to be “bouncing along” in their careers and position them to be outsized contributors and “superstars,” in his lingo.

At the same time, I saw the importance of insuring that folks working for me had the maximum number of career advancement opportunities and a fair chance to be recognized and move up the “career ladder.” Indeed, former EOIR Director Anthony “Tony” Moscato and I finished the work begun by my predecessor as BIA Chair, the late Judge David Milhollan and his then “Chief Attorney Advisor” now retired BIA Appellate Immigration Judge David B. Holmes in creating a career ladder where all qualified BIA Attorney Advisers could eventually reach the full DOJ career level for attorneys of GS-15.

Additionally, with the support of Tony and then Attorney General Janet Reno, I created various supervisory and leadership positions for senior Attorney Advisors that allowed them to assist in the management of the BIA staff while preparing themselves for other senior-level careers both at EOIR and elsewhere. Indeed a significant number of todays Appellate Immigration Judges, Immigration Judges, and senior EOIR managers, and managers in other divisions of the DOJ  got their start in management at the BIA.
Disappointingly, under Sessions, EOIR appears to have joined the fight against the career civil service by “dumbing down” in various ways both the Immigration Judge and BIA Attorney Advisor position by making them less attractive to those seeking a career in public service.
I recently was discussing the politicized hiring process with a retired colleague who had worked elsewhere in the DOJ but had knowledge of both the past and current problems at EOIR. She said “It’s happening again, Paul. Just wait till it all comes out — ‘you ain’t seen nothin’ yet!'”
It’s time for EOIR to be removed from the DOJ and its politicized policies and practices! In this instance, “past performance predicts future results!” And, that’s not a good thing!
PWS
05-28-18

MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017

On Tuesday July 18, 2107, I gave a luncheon address to interns and staff at the Catholic Legal Immigration Network (“CLINIC”) in Silver Spring, MD. My speech entitled “My Life & Times” is at this link:

MY LIFE

On Wednesday, July 19, 2017, I delivered the a luncheon address that was part of the Frankel Lecture Series at Human Rights First in Washington, D.C. & New York, NY (by televideo). My speech entitled “Join The ‘New Due Process Army’ — Fight For Due Process In The United States Immigration Courts” is at this link:

AMERICA’S REAL IMMIGRATION CRISIS

Both speeches are also reproduced in the left menu of immigrationcourtiside.com.

 

Personalized Immigration History, Anyone? Four Of Us “Old Timers” — Hon. Gus Villageliu, Hon. M. Christopher Grant, Hon. Jeffrey Chase, & I — Have Put Together Some Of Our Recollections Of The Earlier Days Of The Immigration Court Under The “Comments” To My Recent “York Speech!”

Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ

Additional thoughts and comments welcome!

PWS

06-11-17

Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. Its an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

Now, this is when I used to give my comprehensive disclaimer providing plausible deniabilityfor everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that Im retired, we can skip that part.

My speech is entitled: Life At EOIR, Past Present, and Future.I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court systems vision, the judges role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

CAREER SUMMARY

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (BIA) at the U.S. Department of Justice (“DOJ”) under the Attorney Generals Honors Program. Admittedly, however, the BIAs Executive Assistant culled my resume from the Honors Program reject pile.One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to todays cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (OIL) in the DOJs Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA.

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a naturalized citizen who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel.   I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.

Not long after I arrived, the General Counsel position became political. The incoming Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and colleague David Crosland, now an Immigration Judge in Baltimore, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.

The third General Counsel that I served under was one of my most unforgettable characters:the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as Iron Mike.His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. As my one of my colleagues said of Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a good cop, bad coproutine, and Ill let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (OIL), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).

I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at todays DOJ arent able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsels Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

In 1987, I left INS and joined Jones Days DC Office, a job that I got largely because of my wife Cathy and her old girl network.I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA with which some of you might be familiar.

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. You will note that immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (AILA) on a number of projects and was an adviser to the LawyersCommittee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didnt always agree with our decisions and vice versa.

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying equal justice for allthat she worked into almost all of her speeches, and which I found quite inspirational. She was also hands down the funniest former Attorney General to appear on Saturday Night Live,doing her famous Janet Reno Dance Partyroutine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerks Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a Plain Language Awardfrom then Vice President Gore.

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is persecution” for asylum purposes.[2] As another historical footnote, the losingattorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally losingthe case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga. Without Davids help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30 of last year. So, Im one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didnt recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

I have also taught Immigration Law at George Mason School of Law in 1989 and Refugee Law and Policyat Georgetown Law from 2012 through 2014. Ive just agreed to resume my Adjunct position with Georgetown Law for a compressed summer course” in “Immigration Law & Policy.

Please keep in mind that if everyone agreed with me, my career wouldnt have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldnt have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences.   I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical. 

THE DUE PROCESS VISION

Now, lets move on to the other topics: First, vision.   The “EOIR Vision” is: “Through teamwork and innovation, be the worlds best administrative tribunals, guaranteeing fairness and due process for all.In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for alltheme.

Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future.   There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administrations many pronouncements on immigration.

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer. Individuals who cant afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called vulnerable populationscontinue to challenge our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low cost lawyers available to handle the overwhelming need. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech Im going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: Whats it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.  

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what its like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.”[5]

My Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judges life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times weve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: [I]mmigration judges often feel asylum hearings are like holding death penalty cases in traffic court.’”[7]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous well-founded fearstandard for asylum, while I helped the Solicitor Generals office develop the unsuccessful opposing arguments for INS.[8] Therefore, I sometimes refer to Judge Marks as one of the founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this age of the Internet.His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the performing artistaspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judges job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Courts amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, to make the judge look smart,no matter how difficult or challenging that might be in a particular case.  

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system due process in action but they teach exactly the type of intellectual and practical values and skills that I have just described.

RECLAIMING THE VISION

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t comemessages to asylum seekers, which are highly ineffective in any event, must end. Thats unlikely to happen under the DOJ as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised prioritizationand attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call aimless docket reshuffling— “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.  

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the prioritytargets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded immigration detention empire,likely to be situated in remote locations near the Southern Border, relying largely on discredited private for profitprisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called expedited removal,thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we dont want youmessage to asylum seekers.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.  

If there are to be nationwide policies and practices, they should be developed by an Immigration Judicial Conference,patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary consumersof the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.  

In particular, the judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds particularly those with expertise in asylum and refugee law have been so few and far between. Indeed, during the last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney Generals Sessions came from a private sector background.

Fourth, I would repeal all of the so-called Ashcroft reformsat the BIA and put the BIA back on track to being a real appellate court.   A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.

Nearly a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015!   An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. [13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.[15]    

Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted.   We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to files in the aisles,misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an amateur nightaura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court. 

GETTING INVOLVED 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.       

They form what I call the New Due Process Army!And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of guaranteeing fairness and due process for all!        

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.     

And the situation is getting worse. With the Administrations expansion of so-called expedited removal,lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to movecases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

I have been working with groups looking for ways to expand the accredited representativeprogram, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The accredited representativeprogram is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.        

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, big lawfirms were some of the major contributors to highly effective pro bono representation. It was also great hands onexperience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants.   I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be informed consumersof legal services.        

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals. 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called comprehensive immigration reformis simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. Its time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

CONCLUSION

In conclusion, I have introduced you to one of Americas largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Courts noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!        

Thanks again for inviting me and for listening. Have a great conference!

 

 

(05/12/17)

        

 

 

 

 

 

[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

[14] See 8 C.F.R. § 1208.13(b)(1).

[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?”   Does this represent the best that American justice has to offer?

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me.  It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case?  Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control.  Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say,  “Congress and President Trump will never go for it.  Nobody in the Washington ‘power curve’ could sell this idea.”  But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle.  His name is Jeff Sessions.  And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?”  Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service.  Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights.  Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me.  I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole.  Yes, there will always be a substantial minority of instances where people act against their best interests.  Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions.  He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views.  The former could be a problem for Sessions, however.  Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms?  Only time will tell.  But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan.  It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron  Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency.  Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission.  But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.”  The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations.  Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17