POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

 

 

 

ANALYSIS BY HON. JEFFREY CHASE: BIA ONCE AGAIN FAILS REFUGEES: Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017) Is Badly Flawed!

https://www.jeffreyschase.com/blog/2017/8/10/the-bias-flawed-reasoning-in-matter-of-n-a-i-

Jeff writes

“In its recent precedent decision in Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017), the Board of Immigration Appeals held that when one who was granted asylum adjusts his or her status under section 209(b) of the I&N Act, their asylum status automatically terminates.  The Board further held that as a result, the restriction under section 208(c) of the Act, preventing the removal of an asylee to the country from which he or she was granted asylum, no longer applies.  Although this decision hasn’t received much attention, I believe it warrants discussion, as the conclusion runs contrary to well-established principles of asylum law.

Let’s begin by looking at some basic asylum concepts.  The reason refugees are granted asylum is because, in their inability to avail themselves of the protection of their native country, they are essentially stateless.  A refugee is one who is outside of his or her country of nationality, and unable or unwilling to return because doing so will result in a loss of life or liberty due to a statutorily-protected ground. One becomes a refugee when these criteria are met; a grant of asylum is merely a legal recognition of an already existing status.

In the same way that one becomes a refugee when the above conditions are met (and not upon a grant of asylum status), one remains a refugee until those conditions cease to exist.  This generally happens in one of two ways.  Less frequently, conditions may change in the original country of nationality to the extent that the individual can safely return.  In the far more common scenario, the asylee eventually obtains citizenship in the country of refuge, at which point he or she ceases to be stateless.  Under U.S. immigration law, the only way to get from asylee to U.S. citizen is by first adjusting one’s status to that of a lawful permanent resident.  Our laws encourage this step towards citizenship (and an end to refugee status) by allowing one to adjust status one year after being granted asylum.  Furthermore, our laws waive several grounds of inadmissibility that apply to non-refugee adjustment applicants, and allow for most others to be waived (with the exception of those convicted of serious crimes or who pose security concerns).

Obviously, the fact that one takes the step towards citizenship of adjusting their status does not mean that they magically cease to be a refugee.  The change in their U.S. immigration status does not make them able to safely return to a country where they might face death, rape, lengthy imprisonment,or torture.  For that reason, section 208(c)(1) of the Act forbids the return of one granted asylum to the country of nationality from which they fled.  The statute makes no mention of this protection terminating upon a change in the asylee’s immigration status; it states that it applies “[i]n the case of an alien granted asylum.”

. . . .

To support its position that adjustment of status is a voluntary surrender of asylum status, the Board needed to provide an alternative to the purportedly voluntary act.  It therefore claimed that one “who prefers to retain the benefits and protections of asylee status, including the restrictions against removal under section 208(c) of the Act, is not obligated to file an application for adjustment of status.”  This is a disingenuous statement, as first, no one would prefer to remain a refugee forever, and second,  the statute itself states that asylum conveys only a temporary status.  Furthermore, the law should not encourage individuals with a direct path to permanent status to instead live their lives in indefinite limbo in this country.

It will be interesting to see whether the United States Court of Appeals for the Fifth Circuit (under whose jurisdiction the present case arose) will decline to accord Chevron deference to the Board’s decision for the reasons stated above.”

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

Read Jeffrey’s complete analysis at his own blog at the above link. Here’s a link to my earlier post on Matter of N-A-I-: http://immigrationcourtside.com/2017/08/04/new-precedent-bia-says-adjustment-to-lpr-status-terminates-asylum-status-matter-of-n-a-i-27-in-dec-72-bia-2017/

I agree with Jeffrey that the BIA once again has worked hard to limit protections for refugees under U.S. law. For many years now, basically since the “Ashcroft purge” of 2003, the BIA has, largely without any internal opposition, manipulated the law in many instances to avoid offering refugees appropriate protections. And, lets face it, with xenophobes Donald Trump as President and Jeff Sessions as Attorney General, nobody realistically expects today’s BIA to stand up for refugees or for the due process rights of migrants generally. That would be “career threatening” in a “captive Immigration Court system” that has abandoned its mission of “being the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

PWS

08-13-17

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.

 

RELAX, Cabinet Members! — Supremes Say No Monetary Damages For Unconstitutional Acts! — Ziglar v. Abbasi

https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf

The full opinion is at the above link.  Here’s the Court’s “Detailed Syllabus,” which, of course, is NOT part of the opinion:

Syllabus

ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, for- mer Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facili- ty’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional viola- tions under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that peti- tioners detained them in harsh pretrial conditions for a punitive pur- pose, in violation of the Fifth Amendment; that petitioners did so be- cause of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain

——————

*Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

2

ZIGLAR v. ABBASI Syllabus

conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit af- firmed in most respects as to the Wardens but reversed as to the Ex- ecutive Officials, reinstating respondents’ claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part. JUSTICE KENNEDY delivered the opinion of the Court, except as to

Part IV–B, concluding:
1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here. Pp. 6–14.

(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amend- ment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy un- der the Constitution itself. Pp. 6–7.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “pro- vide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when decid- ing whether to recognize an implied cause of action, the “determina- tive” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well- settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the

Cite as: 582 U. S. ____ (2017) 3

Syllabus

analysis. The question is whether Congress or the courts should de- cide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8–14.

2. Considering the relevant special factors here, a Bivens-type rem- edy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14–23.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a mean- ingful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intru- sion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15–17.

(b)The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete con- duct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v.

4

ZIGLAR v. ABBASI Syllabus

United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into na- tional-security issues. National-security policy, however, is the pre- rogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere over- sight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118, 124, including in- junctions and habeas petitions.

The proper balance in situations like this, between deterring con- stitutional violations and freeing high officials to make the lawful de- cisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17–23.

3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse alle- gations against Warden Hasty state a plausible ground to find a con- stitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitu- tional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judi- cial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative reme- dies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s ex- pressed caution about extending the Bivens remedy, this context

Cite as: 582 U. S. ____ (2017) 5

Syllabus

must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-

spondents’ claims under 42 U. S. C. §1985(3). Pp. 26–32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful con- spiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly estab- lished’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confront- ed,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is enti-

tled to qualified immunity. Pp. 27–29.
(b) Here, reasonable officials in petitioners’ positions would not

have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clear- ly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach con- sensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that rea- sonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29–32.

KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV–B, in which ROB- ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur- ring in part and concurring in the judgment. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.

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

It was an odd opinion in that only six Justices participated, so the majority was 4-2. The majority opinion was Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito. But, the Chief Justice and Justices Thomas and Alito also wrote or joined in separate concurring opinions. Justice Breyer wrote a dissenting opinion in which Justice Ginsburg joined.

Justices Sotomayer, Kagan, and Gorsuch sat this one out. Justice Sotomayor previously was a Judge on the Second Circuit at the time this case was before that court. Justice Kagan worked on the case as Solicitor General. And, Justice Gorsuch arrived too late to participate in the argument and deliberations.

However, I doubt that there would be a difference in result with all nine Justices voting. Justice Gorsuch almost certainly would side with the majority opinion’s “strict construction” of liability. Even assuming that Justices Sotomayor and Kagan would side with the dissenters, there would still be a 5-4 majority for the approach set forth in Justice Kennedy’s opinion.

Reading between the lines here, I think that the whole Bivens concept is “on the rocks” before this Court.  The current, more conservative, Court clearly wishes Bivens were never decided and wants to limit it essentially to its facts. With a GOP President, any future appointments are likely to turn the tide even more solidly for overruling or strictly limiting Bivens.

I must admit to having mixed feelings. As a Government Senior Executive I was subject to several (totally unfounded) Bivens suits. I was greatly relieved and totally delighted when the doctrines of absolute and implied immunity got me dismissed in my private capacity. I also took out a standard Government approved “Bivens liability insurance policy” just in case.

On the other hand, I’d have to say that the specter of being involved in Bivens litigation was something that I and almost all of the other senior government officials whom I advised and worked with, up to and including Cabinet officers, had Bivens in the back of our “collective minds” in determining actions and policies. So, there was at least some “deterrent value” in the Bivens case. Moreover, it was an effective tool for pointing out the necessity for line enforcement officers, whom I often trained or advised, to keep their actions within clearly established constitutional boundries.

The Court suggests that it would be best for Congress to address this subject. But, Bivens has been around for many years and Congress has never addressed it. So, I wouldn’t hold my breath.

Interestingly, among those high-ranking officials who were relieved of any liability in this case were former Attorney General John Ashcroft and then FBI Director Robert Mueller.

PWS

06-19-17

 

 

NYT: Meet The White Nativist, Anti-Democracy Politician Kris Kobach — If You’re Non-White, He’s Out To Restrict Or Eliminate Your Right To Shape America’s Future — “implementing policies that protect the interests and aims of a shrinking white majority.”

https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html?action=click&contentCollection=Opinion&module=Trending&version=Full®ion=Marginalia&pgtype=article

Read Ari Berman’s shocking profile of a minor politician who wields outsized influence within the GOP and is out to put a “White’s Only” sign on the American Dream. For Kobach, the “Jim Crow Era” was the glory day of the “rule of law” in the U.S. When Kobach talks about the “rule of law” it’s code for using the legal system to cement the rule of a disproportionately white GOP minority over the rest of us, and particularly Americans of color. Will the “sleeping majority” wake up before we’re all disenfranchised by this racist in a suit hiding behind his Yale law degree and ability to spin legal gobbledygook? Kobach isn’t just “the ACLU’s worst nightmare,” as he smugly touts himself. He’s American Democracy’s worst nightmare!

Here’s a sample of what Kobach has in store for the rest of us:

“Kobach’s plans represent a radical reordering of American priorities. They would help preserve Republican majorities. But they could also reduce the size and influence of the country’s nonwhite population. For years, Republicans have used racially coded appeals to white voters as a means to win elections. Kobach has inverted the priorities, using elections, and advocating voting restrictions that make it easier for Republicans to win them, as the vehicle for implementing policies that protect the interests and aims of a shrinking white majority. This has made him one of the leading intellectual architects of a new nativist movement that is rapidly gaining influence not just in the United States but across the globe.”

Read Berman’s lengthy article, and think about what YOU can do to put the kibosh on the plans of this self-proclaimed “fanatic” and his dream of turning America into a “White GOP Folks Only Club.” Even Republicans who might remember enough to know that the GOP in the far, far distant past was the “Party of Lincoln” might want to rethink their party’s support of and association with this dangerous extremist. Act before it’s too late and Kobach steals YOUR American Dream and turns it into a nightmare!

PWS

06-13-17

 

 

 

 

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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

HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose  views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

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?

ABA JOURNAL: Superstar Reporter Lorelei Laird Exposes The Impending Disaster In The U.S. Immigration Courts! (I Am One Of Her Quoted Sources)

http://www.abajournal.com/magazine/article/legal_logjam_immigration_court

Lorelei reports:

“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.

As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.

But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.

Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.

“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”

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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.

In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.

PWS

03/27/17