BREAKING: IN MEMORIUM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!

I have just learned that my friend and former colleague Juan P. Osuna tragically died suddenly of a heart attack last night. Until May of this year, Juan was the Director of EOIR. But, he was much more than that to those of us in the immigration world.

I first met Juan when he was an Editor for Interpreter Releases, the leading weekly immigration newsletter, working with one of my mentors, the late legendary Maurice A. Roberts. Juan later succeeded Maury as Editor-In-Chief and rose to a major editorial position within the West Publishing legal empire. He was serving in that position when I recommended him for a position as an Appellate Immigration Judge/Board Member of the Board of Immigration Appeals during my tenure as BIA Chair. Juan was appointed to that position by Attorney General Janet Reno in 2000.

While serving together on the BIA, Juan and I often joined forces in seeking full due process and legal protections for migrants. Sometimes, our voices were heard together in dissent. In one of those cases, Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) we joined in finding that our colleagues in the majority were interpreting the Convention Against Torture (“CAT”) in an overly restrictive way. In another, Matter of Andazola, 23 I&N Dec. 219 (BIA 2003), we joined in finding that our colleagues in the majority had significantly undervalued the Immigration Judge’s careful findings of “exceptional and extremely unusual hardship” to U.S. citizen children.

Following my reassignment from the BIA to the Arlington Immigration Court, Juan became the Vice Chair and eventually the Chair of the BIA after the departure of Lori Scialabba. But, Juan’s meteoric rise through the DOJ hierarchy was by no means over. In 2009, Attorney General Eric Holder appointed Juan to the position of Deputy Assistant Attorney General for the Civil Division with responsibility for the Office of Immigration Litigation. Later, he was promoted to Associate Deputy Attorney General with responsibility for the Department’s entire “immigration portfolio.”

Not surprisingly, following the departure of EOIR Director Kevin Ohlson, Attorney General Eric Holder named Juan Director of EOIR. In that position, Juan shepherded the U.S. Immigration Courts through some of the most difficult times in EOIR history, involving astronomically increasing caseloads and resource shortages. Throughout all of it, Juan remained calm, cool, and collected.

He was a frequent public speaker and testified before Congress on a number of occasions. He was known for his honesty and “straight answers.” Indeed, in one memorable television interview, Juan confessed that the Immigration Court system was “broken.”

One of my most vivid recollections of Juan’s sensitivity and humanity was when he occasionally stopped by the Arlington Immigration Court to “find out what’s happening at the grass roots.” After lunching with or meeting the judges, Juan invariably went to the desk of each and every staff member to ask them how their jobs were going and to thank them for their dedicated service. He understood that “the ship goes nowhere without a good crew.”

Shortly before I retired, Juan called me up and said he wanted to come over for lunch. We shared some of our “old times” at the BIA, including the day I called to tell him that he was Attorney General Janet Reno’s choice for a Board Member. We also batted around some ideas for Immigration Court reform and enhancing due process.

Back in my chambers, I thought somewhat wistfully that it was too bad that we hadn’t had an opportunity to talk more since my departure from the BIA. Little did I suspect that would be the last time I saw Juan. At the time of his death, he was an Adjunct Professor at Georgetown Law, where I am also on the adjunct faculty. Ironically, Juan took over the “Refugee Law and Policy” course that I taught from 2012-14.

Juan will always be remembered as a gentleman, a scholar, and an executive who appreciated the role that “ordinary folks” — be they migrants, staff, interpreters, or guards, — play in building and sustaining a successful justice system. He will be missed as a friend and a leader in the immigration world.

My thoughts and prayers go out to Juan’s wife, Wendy Young, President of Kids In Need of Defense (“KIND”), and the rest of Juan’s family and many friends. Rest in peace, my friend, colleague, and champion of due process for all!

PWS

08-16-17

 

 

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:
FOR IMMEDIATE RELEASE
Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

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Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

 

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

 

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

 

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

 

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

 

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

 

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

 

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

 

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

 

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

 

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

 

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

 

PWS

07-06-17

 

 

 

POLITICO Covers “Under The Radar” Joint Departures Of EOIR’s Top Execs!

Subject: POLITICO’s Morning Shift: U.S. visas down for Muslim-majority countries — Immigration court chiefs leave — Democrats make minimum wage pledge

By Ian Kullgren | 05/26/2017 10:04 AM EDT

With help from Bianca Padró Ocasio, Ted Hesson and Mel Leonor

U.S. VISAS DOWN FOR MUSLIM-MAJORITY COUNTRIES: “President Donald Trump’s ‘Muslim ban’ may be tied up in court, but newly released figures show his administration is issuing fewer visas to visitors from Arab and Muslim-majority countries,” POLITICO’s Nahal Toosi and Ted Hesson report.

“Data posted online this week by the State Department showed that non-immigrant visas granted to people from nearly 50 Muslim-majority countries were down almost 20 percent in April compared to the 2016 monthly average,” they write. “When only Arab countries were considered, non-immigrant visas were down nearly 30 percent in April compared to the 2016 monthly average. Visas issued to the six countries targeted by Trump’s March 6 travel ban – Iran, Syria, Sudan, Somalia, Libya and Yemen – declined even further, down 55 percent compared to the 2016 monthly average.”

“Stephen Pattison, an immigration lawyer in Maryland who spent nearly three decades as a State Department consular officer, said he thinks Trump policies are having a ‘chilling effect’ on travel to the United States from Muslim nations…. ‘Some people may have canceled trips,’ Pattison said. ‘Some people may have traveled last year but not this year. But I think it would be naive to assume that’s what’s going on in Washington isn’t having an effect on consular adjudications.'” More here.

GOOD MORNING. It’s Friday, May 26, and this is Morning Shift, POLITICO’s daily tipsheet on employment and immigration policy. Send tips, exclusives, and suggestions to thesson@politico.com, mlevine@politico.com, mleonor@politico.com, ikullgren@politico.com and tnoah@politico.com. Follow us on Twitter at @tedhesson, @marianne_levine, @melleonor_, @IanKullgren, and @TimothyNoah1.

PROGRAMMING NOTE – Due to the Memorial Day holiday, Morning Shift will not publish on Monday, May 29. Our next Morning Shift will publish on Tuesday, May 30. Please continue to follow Pro Employment and Immigration issues here.

IMMIGRATION COURT CHIEFS LEAVE: The director and deputy director of the federal immigration courts will leave the office by the end of the month, two sources familiar with the situation told Morning Shift. The courts, known as the Executive Office for Immigration Review, fall under the purview of the Justice Department.

Director Juan Osuna and Deputy Director Ana Kocur announced their departures in a staff-wide email. The reasons for their resignations are unclear, but both assumed their positions during the Obama administration, Osuna in 2011 and Kocur in 2012. Neither EOIR nor the Justice Department responded to requests for comment.

Attorney General Jeff Sessions has promised immigration enforcement will be a centerpiece of his approach to criminal justice, and the next director will be under pressure to speed up deportations and clear the immigration case backlog, currently at nearly 586,000 cases, according to the Transactional Records Access Clearinghouse at Syracuse University.

Jeremy McKinney, a liaison to the office for the American Immigration Lawyer’s Association, said Osuna oversaw the courts during a difficult period. “He was dealing with very limited resources,” McKinney said. The next director will have more, if the Trump administration gets its way. The White House budget proposal released this week called for the hiring of an additional 75 immigration judges and roughly 375 support personnel.

DEMOCRATS MAKE MINIMUM WAGE PLEDGE…: First 100 days? Old hat. House Minority Leader Nancy Pelosi said Thursday that Democrats would take up a measure to raise the minimum wage within the first 100 hours after they regain the majority, assuming they win it back in next year’s election. (That’s a pretty big if.) Pelosi made the pledge alongside a handful of other Democratic lawmakers and Sen. Bernie Sanders (I-Vt.) as they announced legislation to raise the hourly minimum wage to $15, up from the current $7.25, by 2024.

Democrats are making the pledge part of their campaign strategy for 2018. But even if they fulfill it, don’t hold your breath for it to be signed into law so long as Trump is in the White House. Even many Democrats, Hillary Clinton included, favored an increase only to $12 as recently as last year. Trump proposed an increase to $10 during the campaign, but only after previously suggesting no increase (and even calling into question whether the federal government should set an hourly minimum at all). Trump hasn’t touted the $10 proposal since, and he seems unlikely to. POLITICO’s Elana Schor writes that the Democrats’ embrace of $15 demonstrates the influence that Sanders and the left wing of the Democratic party now wield. More here.

… AND REPUBLICANS FIGHT BACK: Also on Thursday, Rep. Phil Roe (R-Tenn.) and half a dozen other Republicans re-introduced legislation to overhaul the National Labor Relations Act to weaken unions’ influence. The so-called Employee Rights Act would allow union members and nonmembers alike to withhold that portion of dues or fees that supports political activities by a union that bargains collectively on their behalf. The bill would also require union locals to conduct a recertification election every year; forbid union leaders from calling a strike without a vote of their members; and criminalize coercion by union leadership (though the violent threats that provision is aimed at are already covered by existing laws). “The rights of American workers were under attack during the Obama presidency,” Roe said in a written statement, “and it is time to restore those rights and work to foster a pro-growth, pro-employee environment.”

Republicans introduced similar legislation three times while President Barack Obama was in office, Sean Sullivan writes in the Washington Examiner. But it isn’t clear that Trump, who has tried to cast himself as a friend to unions, would support the bill. During the election, Trump’s campaign resisted efforts to be pinned down. More here.

DURING SCHOOL HOURS? A Louisiana charter school, International High School of New Orleans, needs to make a dozen modifications to its employee handbook to comply with federal labor laws – including axing a policy that prohibits teachers from using social media during school hours. An administrative law judge ruled Wednesday that the policy runs afoul the National Labor Relations Act. The judge also took issue with a policy that prohibits teachers from using school computers to access social media websites, and another that prohibits teachers from conducting personal business during school hours. The ruling touches on two issues of contention between charter school advocates and unions: whether unions belong in charter schools, and whether charter schools are sufficiently “private” to fall under the jurisdiction of federal labor law. Read the ruling here.

A CASE AGAINST PLAs: Ohio schools built under government-mandated project labor agreements cost 13.12 percent more than schools that were built through competitive bidding, according to a new study by Beacon Hill Institute commissioned by the Associated Builders and Contractors. The study, which looked at schools built since 2000, calculated that PLA constructions cost $23.12 more per square foot than their non-PLA counterparts. Read the study here.

HOGAN TO VETO PAID LEAVE BILL: Maryland Gov. Larry Hogan will veto a paid leave bill that would have given workers in that state five days’ annual paid sick leave. The bill covered all employers of at least 15 workers, but the Republican governor, who proposed addressing paid sick leave with incentives for employers, called it “simply very bad policy.” Hogan said he plans to issue a series of executive orders relating to paid sick leave, including the creation of task force to study the issue. He also plans to mandate paid sick leave for contract employees of the state’s executive branch. Democrat lawmakers will try to override the veto. More from the Baltimore Sun here.

UNIONS SUE TO BLOCK KENTUCKY RIGHT TO WORK LAW: “Organized labor struck back Thursday against Kentucky’s right-to-work law, filing a lawsuit that claims the ban on mandatory union fees in workplaces violates the state’s Constitution,” the Associated Press reports. “The Kentucky State AFL-CIO and Teamsters Local 89 filed the suit, which asks a judge to temporarily block the right-to-work law while the suit proceeds. The labor groups said the law should be struck down for violating numerous sections of the Kentucky Constitution.” More here.

INDY MAY HOLD OFF ON MINIMUM WAGE HIKE: “Indianapolis Mayor Joe Hogsett is urging the City-County Council to hold off on setting a $13-an-hour minimum wage for staff while his office works to eliminate the city’s structural deficit,” James Briggs writes for the Indy Star. “Hogsett on Wednesday said he does not support immediate passage of Proposal 92, which would raise wages for 365 city and county workers who earn between $9.13 per hour and $12.98 per hour.” More here.

ICE ARRESTS NEARLY 200 IN LA: ICE is touting the arrests of 188 undocumented immigrants in the Los Angeles area during a five-day “expanded enforcement” operation that captured a “convicted rapist and a previously deported cocaine trafficker,” ICE said in a written statement Thursday. In addition to identifying where each arrest took place, the ICE statement identified the types of previous criminal convictions and each person’s country of origin.

“Since President Trump signed the Executive Orders regarding immigration enforcement priorities,” ICE said, “ICE has arrested more than 41,000 individuals nationwide who are either known or suspected of being in the country illegally, a nearly 40 percent increase over the same period in 2016.”

COFFEE BREAK:

– “Restaurant: ICE Agents Ate Breakfast Then Detained Employees,” from The Daily Beast

– “Bice: Sheriff Clarke directed staff to hassle plane passenger after brief exchange,” from the Milwaukee Journal Sentinel

– “Appeal says ruling that vindicated San Diego pension reform could create statewide problems,” from the San Diego Union-Tribune

– “Labor union calls on Harley-Davidson to abandon plan to build overseas plant,” from the Milwaukee Business Journal.

– “Elgin to opt out of Cook County minimum wage, sick leave requirements,” from The Chicago Tribune.

– “Editorial: Don’t tinker with teacher pensions,” from The Detroit Free Press

– “Mass. House Lawmakers Postpone Vote On Bill Aimed At Countering Trump’s Immigration Crackdown,” from WBUR

THAT’S ALL FOR MORNING SHIFT.

To view online:
http://www.politico.com/tipsheets/morning-shift/2017/05/26/us-visas-down-for-muslim-majority-countries-220535

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Thanks to the always wonderful Bianca Padró Ocasio for sending this item my way!

In my experience, it’s somewhat unusual for the top two career Senior Executives in an agency to depart simultaneously unless they are headed to the same place, which does not appear to be the case here. It’s also somewhat remarkable in light of both Osuna’s and Kocar’s fairly lengthy and very distinguished service to EOIR and the DOJ (Osuna was a Member, Vice Chair, and Chair at the BIA, and a Deputy Assistant Attorney General in the Civil Division, prior to becoming Director) that no official press release on the departures has been issued, and that both EOIR and DOJ refuse to comment. Usually, even when civil servants are effectively “forced out,” the Department gives them a “pat on the back” and “thanks for the service.”

Some have speculated that with AG Sessions’s overriding interest in immigration enforcement, EOIR will be more “directly controlled” by either the Deputy Attorney General or assistants to the Attorney General in the future. Another possibility is that Sessions will appoint a trusted member of his staff to serve as Director. My recollection is that while the Director is not a Presidentially appointed position, it can be filled by either a career or a non-career (i.e., political) SES appointment.

Stay tuned!

Have a great Memorial Day holiday.

PWS

05-26-17


WANTED: Public Servants With Backbone To Stand Up To Trump & Sessions!

https://www.washingtonpost.com/opinions/preet-bharara-are-there-still-public-servants-who-will-say-no-to-the-president/2017/05/14/8df915de-38d6-11e7-9e48-c4f199710b69_story.html

Former U.S. arrorney for the S.D.N.Y. Preet Bharara writes in an Washington Post op-ed:

“And in the tumult of this time, the question whose answer we should perhaps fear the most is the one evoked by that showdown: Are there still public servants who are prepared to say no to the president?

Now, as the country once again wonders whether justice can be nonpolitical and whether its leaders understand the most basic principles of prosecutorial independence and the rule of law, I recall yet another firestorm that erupted 10 years ago over the abrupt and poorly explained firing of top Justice Department officials in the midst of sensitive investigations. The 2007 affair was not Watergate, the more popular parallel invoked lately, but the lessons of that spring, after the Bush administration inexplicably fired more than eight of its own U.S. attorneys, are worth recalling.

When the actions became public, people suspected political interference and obstruction. Democrats were the most vocal, but some Republicans asked questions, too. The uproar intensified as it became clear that the initial explanations were mere pretext, and the White House couldn’t keep its story straight. Public confidence ebbed, and Congress began to investigate.
In response, the Senate launched a bipartisan (yes, bipartisan) investigation into those firings and the politicization of the Justice Department. Early on, the then-deputy attorney general — Comey was gone by then — looked senators in the eye and said the U.S. attorneys were fired for cause; although such appointees certainly serve at will, this assertion turned out to be demonstrably false. We learned that the U.S. attorney in New Mexico, David C. Iglesias, was fired soon after receiving an improper call from Republican Sen. Pete V. Domenici pushing him to bring political corruption cases before the election. We learned that Justice Department officials in Washington had improperly applied a conservative ideological litmus test to attorneys seeking career positions, to immigration judges and even to the hiring of interns.”

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As I personally experienced, the Bush DOJ was thoroughly politicized and compromised. U.S. Immigration Judges were among those affected by political hiring. Indeed, it did get all the way down to the level of interns.  I knew well-qualified former interns who were “thrown out ” of consideration for permanent appointments under the so-called “Attorney General’s Honors Program” because their law schools or backgrounds were considered “too liberal.”

But, we don’t learn. Jeff Sessions is certainly on track to make the DOJ a mere suboffice of the White House staff. The idea that Sessions would act with integrity and/or say no to the President is beyond laughable.

Sadly, Rosenstein simply seems to be another in the long line of DOJ officials who have sacrificed principles and integrity for career advancement. He’ll likely ride his stint as Deputy AG to a partnership in a major downtown law firm defending white collar criminals and disgraced politicians. And, I have little doubt that the Trump Administration will produce lots off both. Nice work, if you can get it.

Closer to home, with the recent resignations of EOIR Director Juan Osuna and Deputy Director Ana Kocur, both well-respected apolitical career civil servants, we should be watching to see if a politico is appointed to oversee the crumbling U.S. Immigration Court system. At some point in the future, “good government” supporters will regain political control. It will then be important for those of us who believe in an independent immigration judiciary to have our documentation of the corruption and incompetence of DOJ mal-administration of our Immigration Courts ready to present along with a feasible plan for a new independent, due process focused Immigration Court.

PWS

05-15-17

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?

BREAKING: EOIR Director Juan Oscan & Deputy Director Ana Kocur Announce Departures!

According to sources, EOIR Director Juan Osuna and Deputy Director Ana Kocur announced by e-mail that they will be leaving the agency at the end of the month. Reportedly, Kocur will be going to a position at the Railroad Retirement Board while Osuna’s plans are unknown at this time. Osuna also currently serves as an Adjunct Professor at Georgetown Law.

Osuna has been the EOIR Director since 2011, a very challenging period for EOIR. Prior to that he served as a Deputy Assistant Attorney General in he Civil Division, Chairman of the BIA, Vice Chair of the BIA, and Appellate Immigration Judge/Board Member at that BIA.  He has also been an Editor at Westlaw/Interpreter Releases, and has served as an Adjunct Professor at various law schools. He is a noted author and speaker on immigration law.

Kocur has been Deputy Director since 2012. Prior to that, she was Chief of Staff at EOIR. She was also Acting Chief Administrative Hearing Officer at EOIR and held a number of supervisory positions at the BIA.

PWS

05-11-17

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?”

https://www.splcenter.org/sites/default/files/2017-atl_complaint_letter_final.pdf

“We write to provide you with findings of observations of the Atlanta Immigration Court conducted by Emory Law students, in conjunction with the Southern Poverty Law Center, during the fall semester of 2016. Six Emory Law students observed the Court in September and October 2016 seeking to identify any apparent factors leading to the Court’s reputation as one where rule of law principles are not widely respected.1 Atlanta Immigration Judges (IJs) “have been accused of bullying children, victims of domestic abuse and asylum seekers;” while “[immigration] attorneys complain that judges impose such stringent requirements on their clients that they are

1 See Elise Foley, Here’s Why Atlanta Is One of The Worst Places To Be An Undocumented Immigrant, HUFFINGTON POST, May 25, 2016, http://www.huffingtonpost.com/entry/deportation-raids-immigration- courts_us_574378d9e4b0613b512b0f37; Chico Harlan, In an Immigration Court That Almost Always Says No, A Lawyer’s Spirit is Broken, WASHINGTON POST, Oct. 11, 2016, 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?utm_term=.430a15e12a55; Ted Hesson, Why It’s Almost Impossible to Get Asylum in Atlanta, VICE MAGAZINE, Jun. 8, 2016, http://www.vice.com/read/why-its-almost-impossible-to-get-asylum-in-atlanta. See also Southern Poverty Law Center, Immigrant Detainees in Georgia More Likely to Be Deported Than Detainees Elsewhere; Georgia Detainees Less Likely to Be Released on Bond (2016), https://www.splcenter.org/news/2016/08/23/immigrant- detainees-georgia-more-likely-be-deported-detainees-elsewhere.

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impossible for an immigrant to meet.”2 Atlanta’s Immigration Court records one of the highest denial rate of asylum applications–98 percent–in the United States.3

The observations identified several areas of key concern that indicate that some of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice.”

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Read the complete letter to EOIR Director Juan Osuna at the link. Gotta ask: How does the performance of the Atlanta Immigration Court fulfill the “EOIR Vision” of:   “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all?”  Where has the Board of Immigration Appeals (“BIA”) in been on these alleged abuses? Why doesn’t the BIA live up to the EOIR Vision? If it’s this bad now, how bad will it get under the Trump Administration?

PWS

03/02/17

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17