BIA SAYS CATEGORICAL APPROACH INAPPLICABLE TO VIOLATION OF A PROTECTIVE ORDER — MATTER OF OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

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Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

BIA HEADNOTE:

“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, MALPHRUS, GREER

OPINION BY: JUDGE PAULEY

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COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.

PWS

11-18-17

 

 

ASYLUM: LAW YOU CAN USE: All-Star Professor Michele Pistone Of Villanova Law Writes & Directs “Must See TV” — “Best Practices in Representing Asylum Seekers”

Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/16/video-series-best-practices-in-representing-asylum-seekers.aspx?Redirected=true

Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!

PWS

11-17-17

 

THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!

http://thehill.com/opinion/immigration/360139-our-immigration-courts-are-drowning-expedited-removal-can-bring-relief

Nolan writes:

“Trump has acknowledged that the immigration court’s enormous backlog cripples his ability to remove illegal immigrants in a timely manner, but his plan to deal with the backlog isn’t going to work.

This chart from the Executive Office for Immigration Review’s (EOIR) FY2016 Statistics Yearbook shows that the immigration judges (IJs) have not been making any progress on reducing the backlog.

At a recent Center for Immigration Studies panel discussion on the backlog, Judge Larry Burman said, “I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”

By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.

. . . .

If Trump relies on hiring more IJs to deal with the backlog crisis, his enforcement program will be a dismal failure.

His only viable alternative is to reduce the size of the immigration court’s docket, which he can do by promulgating regulations making IJ hearings unavailable to aliens whose cases can be handled in expedited removal proceedings.

He seems to have had this in mind when he directed DHS to use expedited removal proceedings to the full extent authorized by law, which would include most of the undocumented aliens in the United States who were not lawfully admitted, unless they can establish that they have been here for two years.

In expedited removal proceedings, which are conducted by immigration officers, aliens can be deported without IJ hearings unless they have a credible fear of persecution. If they establish a credible fear of persecution, they are entitled to an asylum hearing before an IJ.

But would the courts stop him?”

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

Expedited removal is the wrong solution to the Immigration Court backlog!

  • As I have noted in recent blogs, recent studies show that Immigration Court hearings area already falling substantially short of providing real due process because of lack of available counsel and overuse of immigration detention. Expedited removal would aggravate that problem tenfold.
  • Expedited removal couldn’t begin to solve the current backlog problems because the vast majority of the estimated 11 million individuals already here have been here for more than two years and can prove it, most from Government records. Indeed, I’d wager that the vast majority of individuals in Removal Proceedings in U.S. Immigration Court have had their cases pending for two or more years.
  • The problems in Immigration Court were caused by “Aimless Docket Reshuffling” by the last three Administrations emanating from undue political influence from the Department of Justice, DHS, and the White House. Only an independent Immigration Court that places control of the dockets in individual Immigration Judges, where it belongs, can address those problems.
  • The answer to hiring problems resulting from poor management and political hiring from the DOJ is certainly not to “get rid of” any existing U.S. Immigration Judges. Whether the hiring was done properly or not, there is no reason to believe that any of the currently sitting local U.S. Immigration Judges did anything wrong or participated in the hiring process other than by applying for the jobs. The system needs all the experienced judges it currently has.
  • The problem of inconsistency will only be solved by having an independent BIA that acts in the manner of an independent appellate court, cracking down on those judges who are not correctly applying legal standards. That’s how all other court systems address consistency issues — through precedent and independent appellate review. Numerous examples have been documented of Immigration Judges in courts like Atlanta, Stewart, and Charlotte, to name three of the most notorious ones, improperly denying asylum claims and mistreating asylum applicants. The BIA has failed to function in a proper, independent manner ever since the “Ashcroft Purge.” The only way to get it doing its job is by creating true judicial independence.
  • “Haste makes waste” is never the right solution! It’s been done in the past and each time has resulted in increased backlogs and, more importantly, serious lapses in due process.
  • The docket does need to be trimmed. The Obama Administration was at least starting the process by a more widespread use of prosecutorial discretion or “PD” as in all other major law enforcement prosecutorial offices. Most of the individuals currently in the country without status are assets to the country, who have built up substantial equities, and do not belong in removal proceedings. No system can function with the type of unregulated, irrational, “gonzo” enforcement this Administration is pursuing.
  • The reasonable solution is to do what is necessary to build a well-functioning system that provides due process efficiently, as it is supposed to do. The elements are reasonable access to lawyers for everyone in proceedings, reducing expensive, wasteful, and fundamentally unfair use of detention, better merit hiring and training procedures for Immigration Judges, modern technology, better use of prosecutorial discretion by the DHS, legislation to grant legal status to law-abiding productive individuals currently present in the US without status, and a truly independent judicial system that can develop in the way judicial systems are supposed to — without political meddling and without more “haste makes waste” schemes like “expedited removal!”

PWS

11-14-17

JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?

We Have Scientific Proof That Lawyers Are Incredibly Useful

Patrice writes:

“So instead of fighting whether or not the feds can order cops to bust up the local Motel 6, cities can just hire some lawyers.

This is the lie of every talking head that praises building a wall but adds, with all faux sincerity, that they have “no problem with legal immigrants.” Almost half of the people shuttled through assembly line deportation hearings actually fit within legal immigration protections, but the complexity of the system — not to mention language barriers — make them victims of the bureaucracy.

If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.

That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.

New York’s program has inspired 12 more cities to adopt the program. It’s put up or shut up time for the Department of Justice — if they’re really committed to proving some undocumented migrant is in violation of the law, then stand up and make that case in court.

Against a real attorney.

Unless they’re chicken.”

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Read the complete article at the link. I have previously reported on the VOX News Article and the Vera study.

I think Patrice has hit the nail on the head. Sessions, Miller, Bannon and the White Nationalist crowd are biased bullies picking on the most vulnerable and disadvantaged. Like all bullies, they have absolutely no desire to compete fairly on a level playing field.

The Vera report confirms what many of us involved in the field have been saying for years: a significant portion of those going through Immigration Court, probably 50% or more are entitled to be in the US. Without lawyers, such individuals have little or no chance of making and succeeding on claims that would allow them to stay. Since at least one-third of individuals (and a much higher percentage of detained individuals) are unrepresented, we are unlawfully removing tens of thousands of individuals each year, in violation of due process. And nothing aggravates this unfairness more than unnecessary detention (in other words, the majority of immigration detention which involves individuals who are not criminals, security threats, or threats to abscond if they are represented and understand the system).

A competent and conscientious Attoyney General would work cooperatively with private bar groups, NGOs, and localities to solve the representation crisis and drastically reduce the use of expensive and inhumane immigration detention. But, Sessions is moving in exactly the opposite direction, in violation of constitutional principles of due process, practical efficiency, and basic human decency.

PWS

11-13-17

O CANADA: TRUMP POLICIES AID CANADIAN LOBSTERMEN AT THE EXPENSE OF MAINE! — CANADA BRACES FOR INFLUX OF “TPSers” FLEEING US!

Ana Swanson reports in the NY Times:

“When Americans think about lobster, Maine often comes to mind. But Nova Scotia has emerged as a fierce competitor in exporting lobsters, particularly to Europe. Last year, American lobstermen sold only slightly more to Europe than their Canadian counterparts.
That balance could soon shift given the Canadian-European trade pact, which eliminated an 8 percent European tariff on live lobster when it went into effect in September. Tariffs on frozen and processed Canadian lobster will be phased out in the next three to five years as part of the agreement.
The elimination of European tariffs is “the single most challenging issue” for the American lobster industry, said Annie Tselikis, the executive director of the Maine Lobster Dealers’ Association, which represents companies that buy lobster from Maine fishermen. “This trade agreement does give Canada a huge leg up in the European marketplace,” she said.
Ms. Tselikis said the pact was encouraging American companies to invest in new facilities in Canada to qualify for the lower European tariff.
“If the argument is you’re not going to develop this trade policy because you’re worried about outsourcing jobs — well, here we are, potentially outsourcing jobs due to an absence of trade policy,” she said.”

Read the complete article here:

Meanwhile, Alan Freeman reports in the Washington Post that the Trump Administration might be on the verge of  driving tens of thousands of American residents with useful job skills over our Northern Border:

“OTTAWA — In late October, starkly worded warning signs began appearing on the Canadian border with New York state and Vermont aimed at discouraging would-be asylum seekers fleeing the United States.

“Stop. It is illegal to cross the border here or any place other than a Port of Entry. You will be arrested and detained if you cross here.”

“Not everyone is eligible to make an asylum claim,” reads a second sign. “Claiming asylum is not a free ticket into Canada.”

As the Trump administration signals that it may soon remove the Temporary Protected Status designation from more than 300,000 Central Americans and Haitians, threatening them with deportation, Canadian officials are bracing for a new wave of asylum seekers flooding over the border.

Already this week, acting U.S. Homeland Security Secretary Elaine Duke announced she was lifting protected status for 2,500 Nicaraguans, effective January 2019. And while she extended the same protection for 57,000 Hondurans until July 2018, she warned that protection may end at that time.

A new sign posted by Canadian authorities at the border between Canada and the United States. (Canada Border Services Agency)
The U.S. government decided to protect both groups from deportation following the devastation wrought by Hurricane Mitch in 1999, and the measures were repeatedly renewed until this year. Duke said the original conditions justifying that protection “no longer exist.” Canada and its immigrant-friendly policies may be seen as a viable alternative for those reluctant to return to their countries of origin.

. . . .

Just last week, the government published a three-year plan aimed at accepting almost 1 million immigrants as permanent residents, with a clear bias toward economic migrants, who will make up 58 percent of the total. The balance will be shared between family and refugee classes.

 

Public reaction to the plan, which will see intake grow steadily from 300,000 in 2017 to 310,000 in 2018, 330,000 in 2019 and 340,000 in 2020, has been generally positive with many of the critics, including the government’s own council of economic advisers, saying Canada should be accepting even more immigrants.

Canada has an increasingly diverse population, with visible minorities making up 22.3 percent of the population in 2016, according to recently released census figures, compared with just 4.7 percent in 1981. By 2036, visible minorities are expected to make up 33 percent of the population.

“Canada is probably the best country in the world to be an immigrant because we give immigrants a chance to climb the ladder to success,” said Kareem El-Assal, senior research manager at the Conference Board of Canada, a think tank, where he specializes in immigration.

Assal said Canada’s immigration system works in part because the Canadian government helps newcomers integrate through language, skills and job training at a cost of almost a billion dollars a year. Furthermore, immigrants benefit from Canada’s universal health-care system and its good public education and reasonably priced universities.

Public opinion surveys continue to show that Canadians are pro-migration. A survey by the Environics Institute last spring showed that 72 percent of respondents agreed that “overall, migration has a positive impact on the economy.” Yet in the same survey, 54 percent said that “too many immigrants do not accept Canadian values.”

As for those border warning signs, Fortin, the union leader, says that asylum seekers are reading them and then crossing the border anyway.

“It doesn’t seem to have a very big dissuasive effect,” he said.”

Here’s a link to the complete article:https://www.washingtonpost.com/world/the_americas/canada-fears-a-huge-rush-of-asylum-seekers-if-their-us-protected-status-is-lifted/2017/11/12/9464645c-c4b1-11e7-9922-4151f5ca6168_story.html

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Maine needs all the economic help it can get. And, I had lots of successful “TPSers” pass through my courtroom in Arlington. Good folks, industrious with useful job skills in the types of positions that we need but most Americans don’t want to do: child care, home health care, roofing, drywalling, cleaning, washing, making beds, waiting on tables, brewing coffee, making sandwiches, landscaping, pouring concrete, building things, meat processing, running convenience stores, etc. And, the vast majority had kids who were US citizens or in the DACA program. Our loss is likely to be Canada’s gain. The concept that there are lots of Native-born Americans out there (at a time of effectively full employment) waiting to take these jobs is a restrictionist fairy tale. But, if and when these folks leave, Americans who depend on them for essential services (like child care and Home improve,wants, for example, or restaurant and hotel owners) are going to find themselves out of luck.

So far, overall incompetence has saved us from the full adverse effects of Trump’s “Make America (Not So) Great” policies. But, if they ever do go into full effect, it will be bad for most Americans, including those gullible enough to have voted for Trump.

PWS

11-13-17

LA TIMES: MAJORITY OF CALIFORNIANS VALUE MIGRANTS (REGARDLESS OF STATUS) — OPPOSE TRUMP ADMINISTRATION’S “GONZO” IMMIGRATION ENFORCEMENT!

http://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Jasmine Ulloa reports for the LA Times:

“Despite the Trump administration’s repeated attempts to frame illegal immigration as a threat to public safety, the poll also found an overwhelming majority believe that people without legal residency help revitalize cities as opposed to increasing crime.

The survey results, poll analysts and policy experts said, reflect ongoing trends in California, where through the decades the public has tended to support immigrants in the country illegally, even when federal or state political leaders have stoked anti-immigrant sentiment to rally their bases.

“We have seen this in California forever,” said Jill Darling, the survey director for the Center for Economic and Social Research at USC. “People, including Republicans, have been more supportive of immigrants and reform, even to the point of supporting a path to citizenship, more so than Republican leadership.”

Most poll participants also expressed positive perceptions of people without legal residency in the country.

Nearly 63% of people surveyed said they believed immigrants without legal status strengthened the economy, as opposed to roughly 38% who said they took away jobs. Sixty-six percent said immigrants in the country illegally helped revitalize cities, and about 34% — including more than 72% of Republicans — believed they increased crime.

Policy experts said the poll results reflect the explosive growth of Latinos, Asians and other minority communities that tend to lean Democratic. California’s families are so diverse, they said, that nearly everyone knows someone who came to the country as an immigrant — legally or illegally.

It also reflects a shift away from the “us-versus-them” rhetoric that damaged the Republican brand in the 1990s, political consultants and immigration policy experts said. During that time, Gov. Pete Wilson was criticized for using footage of people running across the border to dramatize the problem of illegal immigration, and voters passed propositions to bar immigrants in the country illegally from public benefits, outlaw affirmative action programs and teach only English in schools.

That “no longer reflects our reality,” said Mindy Romero, director of the California Civic Engagement Project. “In a state like California, immigrants are us.”

Andrew Medina, state policy manager for Asian Americans Advancing Justice, said he wasn’t surprised by the results of the poll — or by the approval among California residents for the sanctuary state law. A study released in February by the Public Policy Institute of California found that a solid majority of Californians believe the state and local governments should make their own policies and take action to protect the rights of immigrants who are here illegally.

The final language of the sanctuary state law was the result of months of tough negotiations among Gov. Jerry Brown, Senate leader and bill author Kevin de León (D-Los Angeles), and law enforcement officials.

It will largely prohibit state and local law enforcement agencies from holding or sharing information about people with federal immigration agents unless those individuals have been convicted of one or more offenses from a list of 800 crimes outlined in a 2013 state law.

Federal immigration authorities still will be able to work with state corrections officials — a key concession Brown had demanded — and will be able to enter county jails to question immigrants. But the state attorney general’s office will be required to publish guidelines and training recommendations to limit immigration agents’ access to personal information.

“It is positive that these polls show that there is support for immigrant communities, and it is especially positive in this era,” Medina said.

Still, Romero advised caution.

“Discrimination against immigrants is very real and a danger,” she said, pointing to anti-immigrant rhetoric at the national level. “I think we can’t rest on a changing landscape in California and just assume that things will continue to be more receptive and open.”

 

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Read the complete article at the link.

The Trump-Sessions-Miller-Bannon bogus White Nationalist program of portraying bigotry and racism as “law enforcement” ultimately will fail. Truth will win out. But, that doesn’t mean that lots of damage won’t be inflicted along the way by restrictionists on vulnerable individuals, their defenders, our society, our economy, and our international leadership and reputation.

Resist the false messages with truth! Support truth with action!

PWS

11-12-17

LPR CANCELLATION: Split 9th Follows 5th — Holds That “Admission In Any Status” Includes Unlawful Status — Saldivar v. Sessions!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf

Saldivar v. Sessions, 9th Cir., 11-07-17, published

PANEL: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

DISSENT: Judge Kozinski

KEY QUOTE:

“The structure of § 1229b thus confirms what was already unambiguously clear from the plain meaning of the text: the statute requires continuous presence for seven years after a procedurally lawful admission in any immigration status, lawful or unlawful.8 Perhaps, had Congress required admission “in any status whatsoever” in § 1229b(a)(2), the government might have acknowledged that unlawful status was covered by the phrase it now finds ambiguous. However, as we have explained, the term “any,” in its plain meaning, is all-inclusive and any further language would be pure surplusage. In short, any is any, and a status is a status, be it lawful or unlawful.”

JUDGE KOZINSKI, DISSENTING, WAS UNIMPRESSED:

“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”

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Read the complete opinion at the link.

The 9th Circuit majority declines to give the “Chevron deference” to the BIA precedent Matter of Blancas- Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) by finding the statute “unambiguous.” So far, no “Circuit split.”

Undoubtedly, migrants without visas arriving at the border have lots of reasons to lie or otherwise misrepresent. However, with due deference to Judge Kozinski, it seems highly unlikely that the off-chance of applying for discretionary relief 10 years in the future would be one of them.

I find it interesting that it has taken 15 years since the BIA’s decision in Blancas-Lara for the Article IIIs to come to grips with the issue.

PWS

11-11-17

 

 

 

 

 

KELLY TRIED TO BULLY ACTING DHS DIRECTOR ELAINE DUKE INTO TERMINATING TPS FOR HONDURANS – SHE WOULD HAVE NONE OF IT!

http://www.cnn.com/2017/11/09/politics/elaine-duke-hondurous-immigrants/index.html

“By: Tal Kopan, Abby Phillip and Miranda Green, CNN

White House chief of staff John Kelly pressured acting Homeland Security Secretary Elaine Duke to terminate protections for tens of thousands of Honduran immigrants currently living in the US, sources tell CNN.

Duke received multiple calls from Kelly pressuring her, in Duke’s perception, to end Temporary Protected Status for Honduran immigrants on Monday’s decision day, leaving Duke “distraught and disappointed” and ready to leave the department, according to a source familiar with Duke’s thinking.

The Trump administration characterized the call as Kelly weighing in through a normal process and said Duke was committed to remaining at her post.

The Washington Post first reported on the call.

TPS is an immigration status allowed by law for certain countries experiencing dire conditions, such as a natural disaster, epidemic or war, and protects individuals from deportation and authorizes them to work in the US.

Monday was the deadline for a decision on the protected status for the roughly 86,000 Hondurans. DHS instead announced that Duke had not found there was enough information to make a formal decision, a move that triggered a six-month extension of the protected status. The administration did terminate protections for Nicaraguans, about 5,300 of which live in the US. Both populations have lived in the US for nearly two decades.

According to the source familiar with Duke’s thinking, Kelly and the administration wanted Homeland Security secretary nominee Kirstjen Nielsen to avoid questions about the issue at her Senate confirmation hearing on Wednesday, and wanted to her confirmed quickly enough that she would be the one to make a decision on temporary protected status for Haitians, which is due at the end of the month and which will likely be ended.

According to the source familiar, Duke had decided over the weekend that she did not have enough information to end the protections for the Hondurans, which is what the department announced late Monday evening.

“I think she’s very distraught and disappointed at Kelly and the whole apparatus,” the source said. “She’s out there alone, you know? It’s like, ‘Why do I keep doing this if you guys are just going to beat me up?'”

The source confirmed that she made reference to resigning during the back-and-forth and is inclined to leave the job.

The source described the back-and-forth as a “forceful, directive conversation.”

“It was a loud conversation, it wasn’t a quiet conversation,” the source said.”

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Read the rest of the story from Tal & Co at the link. No wonder Gonzo’s DOJ is trying (unethically) to “retaliate” against CNN by abusing the anti-trust laws! Very “Third World” — a perfect term to describe the Trump Administration — corruptly using government power to reward cronies, intimidate the public, and punish opposition. Those of us who have had to deal with Third World dictatorships and kleptocracies and their carnage for decades know the characteristics all too well.

So, long time Honduran residents of the US (and their families, employers, employees, colleagues, friends, and neighbors) owe their “six month reprieve” from insane chaos totally to one career Senior Executive with the backbone and integrity (a word seldom heard in connection with the Trump Administration) to stand up to the “Trump Mafia.” Cheers for Elaine Duke!

Kelly sinks deeper into “The Swamp” every day with each new revelation of his sleazy conduct and reactionary views. I suspect that Duke’s DHS career will come to an end shortly. And, there is some reason to suspect that her permanent replacement, Kirstjen Nielsen, is being put over at DHS to  be a “yes-woman” for the Trump, Sessions, Kelly, Miller, Bannon (in absentia) White Nationalist crew operating out of the White House and the DOJ. Whether she will live up to their “low expectations,” however, is another matter entirely.

PWS

11-10-17

HON. JEFFREY CHASE: SESSIONS’S PUSH FOR PERFORMANCE QUOTAS ON U.S. IMMIGRATION JUDGES MIGHT ACTUALLY INCREASE ASYLUM GRANTS! — But, The Real Point Is That This Type Of Inappropriate & Unnecessary Meddling & Manipulation Of The System Shows Why We Need an Independent Immigration Court!

https://www.jeffreyschase.com/blog/2017/11/9/ijs-tiered-review-and-completion-quotas

IJs, Tiered Review, and Completion Quotas

EOIR recently announced its intent to subject immigration judges to tiered performance reviews.  Most notably, EOIR plans to impose case completion quotas on the individual judges.  The American Bar Association, American Immigration Lawyers Association (AILA) and the National Association of Immigration Judges (NAIJ) were among the many organizations to express their strong  objection to the proposal.

Immigration judges have always been exempt from the tiered reviews that other Department of Justice attorneys undergo each year.  The Office of the Chief Immigration Judge deserves credit for understanding that it is not possible to impose any type of review criteria without impeding on judges’ neutrality and independence.  To begin with, how many cases should a judge complete in a given period of time?  Are the judges with the most completions affording due process to the respondents?  Are they identifying all of the issues, spending enough time reviewing the records, and giving proper consideration and analysis to the facts and the law?  Do their decisions provide sufficient detail for meaningful review?  Are those at the other end of the scale completing less cases because they are working less hard, or to the contrary, because they are delving deeper into the issues and crafting more detailed and sophisticated decisions?  Or is it because they are granting more continuances out of a sense of fairness to the parties, or to allow further development of the record in order to allow for a more informed decision?  And regardless of the reasons, might they be prejudicing some respondents by delaying their day in court?  How would management turn all of these factors into an objective grade?

In terms of completion quotas, all cases are not equal.  A respondent who has no relief and simply wants to depart can have his or her case completed in minutes, whereas a respondent seeking relief in New York will presently be scheduled for a merits hearing in the Spring of 2020, at which time the lengthy testimony of multiple witnesses, disputes over the admissibility of evidence, the need to wait for DHS to adjudicate pending petitions for relief, etc. might result in months or even years of additional continuances.  Decisions in some cases are delivered orally in just a few sentences; others require 25 written pages.  Yet all count the same in EOIR’s completion ledger.

I am pretty certain that the move for tiered review is not coming from the Office of the Chief Immigration Judge,  but from higher up – either the new Acting Director of EOIR, or Main Justice.  Even under more liberal administrations, the Department of Justice never really understood the IJs, who are the only judges within a predominantly enforcement-minded department.  The need for neutrality and fairness is further lost on the present Attorney General, who has made his anti-immigrant agenda clear.  IJs are in an interesting position: they represent the Attorney General (i.e. are acting as the AG’s surrogates, where the statute delegates authority to make determinations or grant relief to the AG).  Yet in spite of such posture, IJs often reach decisions that are at odds with the AG’s own views.  For example, does Jeff Sessions, who last month issued a memo allowing discrimination against LGBTQ individuals under the guise of protecting the discriminators’ “religious liberty,”, approve of his immigration judges granting asylum claims based on sexual orientation or sexual identity?  In light of Sessions’ recent charges of widespread asylum fraud, does he agree with his judges’ high asylum grant rates?

It is probably this tension that provides the impetus for the Department’s  present proposal.  The tiered criteria and completion quotas are likely designed to pressure judges with more liberal approaches into issuing more removal orders.  They would also provide the department with a basis to take punitive action against judges who resist such pressures.  Given the high percentage of immigration judges who are retirement eligible, the department might be counting on judges targeted under the new review criteria to simply retire, allowing them to be replaced with more enforcement-minded jurists.

It should be noted that the changes are at this point proposals.  The immigration judge corps is represented by a very effective union.  As the present leadership within the Office of the Chief Immigration Judge is fair minded, there is hope that reason will prevail.  However, in a worst-case scenario in which the plan is implemented, what should immigration judges do?

Having worked both as an IJ and a BIA staff attorney subjected to both quotas and tiered review, I can state that there are big differences.  BIA staff attorneys draft decisions that Board members then have to approve, whereas immigration judges are in complete control of the case outcome.  Furthermore, unlike BIA attorneys who are dealing with records of completed decisions, immigration judges are conducting proceedings in which the protection of due process must be safeguarded above all, as the Chief Immigration Judge pointed out in her July 31, 2017 memo on continuances.  Circuit courts are not going to excuse due process violations because immigration judges have to meet arbitrary completion goals.

Although the intent may be to create more removal orders, completion quotas can prove to be a two-edged sword.  Should the ICE attorney not have the file at the first Master Calendar hearing, or should they lack a certified copy of the conviction record or proof of service of the NTA, will the IJ feel compelled to terminate proceedings (which constitutes a completion) rather than grant the government a continuance?  Many hearings turn on credibility findings, but credibility findings take time to get right.  The Second Circuit, for example, has held that an immigration judge should probe for additional details to clear up doubts about credibility.1  As Deborah Anker has pointed out in her Law of Asylum in the United States, “Federal courts have overturned adverse credibility findings where an immigration judge has interrupted an applicant repeatedly, rushed the hearing, and then criticized an applicant’s testimony for lacking specificity.”2  But won’t completion quotas likely encourage exactly such prohibited behavior?  In order to avoid reversal on appeal, judges who are forced to rush or curtail hearings will may need to give the benefit of the doubt to respondents and find them credible.  Additionally, judges may no longer be able to continue cases to allow DHS to subject documents to forensic examination, or to conduct consular investigations in the applicants’ home countries.  Under pressure to complete cases, judges may be forced to credit witness affidavits as opposed to allowing DHS to subject those witnesses to cross-examination.

For the above reasons, it is not impossible that completion quotas might actually result in more grants of relief and terminations of proceedings, resulting in fewer removal orders.  Like so many of the poorly thought out policies of the current administration seeking to erode individual protections, completion quotas (if implemented) may just be the latest that will fail to achieve its intended result.  The proposal provides further evidence of the need for a truly independent immigration court.

 

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

Notes

1.  Yang v. Board of Immigration Appeals, 440 F.3d 72, 74 (2d Cir. 2006).

2.  Anker, Law of Asylum in the United States (2017 Edition) at 199.

 

 Reprinted with Permission
*******************************************************
Thanks, Jeffrey! Performance standards for Immigration Judges are a complete waste of time, an improper intrusion into judicial independence, and a diversion of time and energy from solving the many real problems facing this system — most of which relate to the DOJ and the untenable administrative structure of the U.S. Immigration Courts, not the individual IJs.
PWS
11-09-17

TRAC IMMIGRATION: DHS DETAINER PROGRAM – TOUTED BY SESSIONS, TRUMP, & DHS AS ESSENTIAL & A BASIS FOR SESSIONS’S ATTACK ON SO-CALLED “SANCTUARY CITIES” –- APPEARS TO BE LARGELY A HOAX! – The Data Doesn’t Support The Claims!

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. Since President Trump assumed office, the Secure Communities program has been promoted as essential to implement this administration’s agenda for ramped up deportations. The agency contends that “Secure Communities has proven to be one of ICE’s most important tools for identifying and removing criminal aliens as well as repeat immigration violators.”

However, analyses of the agency’s own internal records document that the use of detainers under this program is not living up to these claims. For example, according to the latest available ICE data only about 2.5 percent of so-called Secure Communities removals were connected to the use of detainers sent to local law enforcement agencies. When compared with ICE removals from all sources, this component made up an even smaller proportion – less than 1 percent of all ICE removals.

Furthermore, the number of convicted criminals that ICE claims to have deported through this program under the Trump administration is four times higher than what the evidence shows has actually happened.

The results of stepped up enforcement appear quite small so far. By July 2017 there were only 529 additional Secure Communities removals of individuals convicted of crimes as compared with removals under President Obama. For those convicted of serious crimes, the average monthly change was just 128 more individuals. And few of these appear to have involved the use of ICE detainers.

These statistics current through July 2017 were compiled from ICE internal records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to a series of Freedom of Information Act (FOIA) requests, following lawsuits that TRAC’s co-directors filed against the agency.

To read the full report go to:

http://trac.syr.edu/immigration/reports/489/

A new online query tool provides public access to the data TRAC has compiled tracking all Secure Communities removals month-by-month for each state and county in the country. Go to:

http://trac.syr.edu/phptools/immigration/secure/

Additional tools are also available that track ICE detainers (updated through July 2017) and all ICE removals (updated through June 2017). For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

Hardly a surprise to those of us who actually understand the system that “Gonzo’s” war on so-called “Sanctuary Cities” is based on a bogus premise. Detainers are, and always have been, marginal to effective immigration enforcement. And, the program of turning ethnic communities against the authorities — both local and Federal — demonstrably makes us less safe as a country. With the Trump Administration, it’s always about the White Nationalist agenda — not effective law enforcement.

PWS

11-09-17

 

 

 

 

 

 

SEATTLE TIMES: THE CRUELTY OF TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT FINALLY SINKS IN – EVEN IN “TRUMP COUNTRY!”

https://www.seattletimes.com/seattle-news/northwest/fear-regrets-as-pacific-county-residents-go-missing-amid-immigration-crackdown-police-chief-neighbors-kind-of-in-shock-after-immigration-arrests-in-pacific-county-immigration-crack/

Nina Shapiro reports for the Seattle Times:

“LONG BEACH, Pacific County — Named after a character in a cowboy book, Police Chief Flint Wright describes himself as pretty conservative.

A portrait of Ronald Reagan hangs in his office, along with photos of John Wayne, and his father and grandfather on horses — capturing the rural lifestyle of Pacific County, which curves around Willapa Bay in the state’s southwest corner.

He doesn’t talk about it much, but he voted for Donald Trump, helping Pacific County go with the Republican presidential candidate for the first time in decades. Among other things, he liked Trump’s promise to secure the borders. Economic migrants are not a problem in his mind — he’s seen how hard they work — but he wondered, “who’s coming with them?” Terrorists, he feared.

Then came the July arrest of Mario Rodriguez by U.S. Immigration and Customs Enforcement (ICE).

“I was kind of in shock, to be blunt with you,” Wright said.

Rodriguez, whose visa had expired, had lived in the area for more than a dozen years. He had worked in bilingual education and periodically tipped police to trouble spots.

Mario Rodriguez, detained by federal Immigration and Customs Enforcement after his visa expired, has lived in the area for more than a dozen years and worked in bilingual education. He is now out on bond as his case goes through immigration court. (Erika Schultz / The Seattle Times)
Mario Rodriguez, detained by federal Immigration and Customs Enforcement after his visa expired, has lived in the area for more than a dozen years and worked in bilingual education. He is now out on bond as his case goes through immigration court. (Erika Schultz / The Seattle Times)
 

“He was real pro-law enforcement,” the police chief said. “Shoot, anybody would like to have him as a neighbor.”

Trump, on the campaign, had talked about kicking out Mexican “drug dealers, criminals, rapists.” And that’s the kind of immigration crackdown a lot of people here were expecting.

“Yeah, we don’t want that element,” Wright said. But Rodriguez? The police chief couldn’t believe sending him back to Mexico would do anybody any good.

That kind of shock is reverberating throughout the county as Trump’s toughened immigration policy hits home. ICE has arrested at least 28 people in the county this year, according to numbers provided to the Sheriff’s Office.

While that’s just a small share of the roughly 3,100 ICE arrests overseen by its regional office in Seattle — which covers Washington, Oregon and Alaska — it represents a pronounced upward trajectory. Last year, ICE reported eight Pacific County arrests to the sheriff and for a long stretch of years before that, zero.

In a county of small, close-knit communities — Long Beach, population 1,400, is one of the largest — it’s noticed when someone goes missing. The number is magnified by those who have moved, gone into hiding or followed family after a deportation. People have lost neighbors, schools have lost students and businesses have lost employees.

. . . .

Shellfish farmers face many uncertainties, Sheldon explained.

The weather is a big one, periodically disrupting work on the water.

ICE is the new big storm, blowing in periodically to take essential workers.

Boats, working in the seafood industry, travel on Willapa Bay. (Erika Schultz / The Seattle Times)

“One minute they’re here. Another minute they’re not,” Sheldon said. “It’s not like there’s any warning.”

She and other employers say they get required paperwork for every worker — though documents might be fake — and don’t know who is illegally here.

“It’s been a huge impact,” said Kathleen Nisbet-Moncy, vice president of the Willapa-Grays Harbor Oyster Growers Association, of ICE’s arrests. Many of the area’s two dozen companies are small businesses. Losing key employees is a big deal. One, she said, lost a worker of 25 years.

And the industry already faced a labor shortage.

Workers need to have an understanding of tides; they carry tide tables like Bibles, arranging their days accordingly. Some operate boats. Others shuck oysters or process fish, not easy when done quickly.

Paid by volume, they sometimes work seven day weeks, or days that take in both early-morning and late-night tides cycles.

“Don’t you want people to work?” Sheldon asked. “Why don’t we say you can’t sell cigarettes to illegal immigrants?”

She was joking. But things didn’t make sense to her.

It was hurting her business. So many people have been arrested or moved that she can no longer fill empty positions. She has had scale back orders and turn away customers.

“Tell him I say hi”

In Long Beach Culbertson Park, as after-school football practice got started, 10-year-old Danner Walters broke into tears.

He was on the sidelines talking about his friend Joel. A week before, Joel left for Mexico with his mom and siblings to rejoin his dad, who had been deported months before.

“We’ve been best friends since kindergarten,” Danner said.

. . . .”

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

Read the complete, much lengthier, article, at the link.

Too bad folks don’t think through all of the implications before they pull the lever for immoral and irrational candidates like Trump and the GOP restrictionists. Truth is what the restrictionists don’t want you to hear or think about: the vast majority of the allegedly 11 million undocumented individuals here are law-abiding, productive members of the American community, doing jobs that help, rather than hurt, American workers, doing them exceptionally well, and raising or being part of part of “mixed families” with citizens, immigrants, and undocumented individuals all mixed together.

Removing them is a senseless and cruel waste of time and money. The only reasons for doing it have to do with racial and cultural bias — that’s why guys like Trump, Sessions, Bannon, and Miller have to come up with bogus economic and law enforcement rationales in an attempt to “rationalize” basically irrational policies.

Actually, the number of undocumented individuals in the United States is a boon to our country, our economy, and our culture. It shows that we remain a vibrant nation, and that we should have been admitting hundreds of thousands of additional legal immigrants annually. That’s why GOP proposals to restrict legal immigration are so wrong-headed.

Because we failed to do what we should have, the system basically “self corrected” largely by the operation of free market forces, but with some adverse effects like the use of smugglers, the exploitation of the undocumented, and the colossal amount of money wasted by “dumb” immigration enforcement and detention over many Administrations and Congresses.

But, it’s not too late to get it right by legalizing the productive, law-abiding individuals already here and expanding our legal immigration system to realistic levels that are more consistent with our needs as a nation. That will reduce or eliminate the “job magnet” and cut the business for smugglers without vast expenditures of law enforcement funds.

PWS

11-09-17

SURPRISE: TO DATE, JEFF SESSIONS IS APPOINTING A MORE DIVERSE AND BALANCED IMMIGRATION JUDICIARY!

https://www.justice.gov/sites/default/files/pages/attachments/2017/11/06/ijinvestitures_11062017.pdf

In what I would consider a pleasant surprise, Attorney General Jeff Sessions appears to be appointing a more diverse and balanced group of U.S. Immigration Judges than his immediate predecessors.

As shown at the above link to the latest official announcement of judicial appointments, five of the seven newly appointed U.S. Immigration Judges reflect expertise developed outside the prosecutorial role. This is at least the second group of Sessions’s appointees to reflect such a diversity of backgrounds.

By contract, the Obama Administration drew nearly 90% of its appointees to the Immigration Bench from government prosecutorial backgrounds. Prosecutors of course should be a significant source of judicial appointments. But, they should not be the “sole source” as was the case prior to the creation of EOIR and a situation EOIR was returning to during the Bush and Obama Administrations.

A well-qualified, well-balanced, diverse Immigration Bench can only help the Immigration Courts in achieving Due Process. It also creates a positive and intellectually stimulating environment for the individual judges. I always learned something from my colleagues whose experiences and approaches differed from mine. Sometimes it spurred me to rethink an approach or position. Other times my reexamination convinced me I was on the right track. Either way, looking at other ways of analyzing common problems is good for sitting judges.

Congrats to all of the new Immigration Judges! And, congrats to Attorney General Sessions for looking beyond “the usual suspects” for folks who bring a variety of professional  backgrounds and experiences to the Immigration Bench!

PWS

11-08-17

 

LA TIMES: ADMINISTRATION TO END NICARAGUAN TPS — NO DECISION YET ON OTHER NATIONALITIES!

http://www.latimes.com/politics/washington/la-na-pol-essential-washington-updates-trump-administration-ending-protections-1510012896-htmlstory.html

Joseph Tanfani reports:

“The Trump administration said Monday it will end a special reprieve from deportation for thousands of Nicaraguans who have been allowed to stay in the U.S. for years, but delayed a decision on similar protections for tens of thousands of Hondurans.

The Department of Homeland Security announced that it would not renew Temporary Protected Status for about 5,300 Nicaraguans whose protections under the program expire on Jan. 5. They will be allowed to stay in the U.S. only until Jan. 5, 2019, unless they qualify to stay under other provisions of immigration law, senior administration officials told reporters.

But the administration gave a six month reprieve to some 86,000 Hondurans also covered by the program. The officials said that acting Homeland Security secretary Elaine Duke needed more time to determine if conditions in Honduras had improved enough to allow them to return home.

. . . .

The administration’s actions have been closely eyed for any signal about similar protections for larger groups of people who came from other troubled countries, including Haiti and El Salvador. Deadlines come due soon for deciding on whether to renew protections for those groups.“

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Read the complete article at the link.

I wonder whether the absence of a permanent Secretary entered into the decision to defer/delay decisions on the most numerous and controversial TPS categories.

PWS

11-06-17

EUGENE ROBINSON IN WASHPOST: The Master Of Racial Identity Politics & His GOP Stooges!

https://www.washingtonpost.com/opinions/president-trump-is-the-master-of-abhorrent-identity-politics/2017/11/02/e675bca8-c003-11e7-959c-fe2b598d8c00_story.html?utm_term=.47797a94c8ea

Robinson writes:

“By now it should be clear that racism is a feature of the Trump administration, not a bug.

White House Chief of Staff John F. Kelly’s hideous rewriting of Civil War history is merely the latest evidence. Can anyone really believe “the lack of an ability to compromise” caused that bloody war? Is it possible to become a four-star Marine general without knowing that the Constitution itself was structured around a compromise on slavery? Or that the first half of the 19th century saw a series of equally immoral compromises that let slavery continue?

How can a man whose son died in service of his country believe that “men . . . of good faith” is an acceptable description of military officers who committed treason and took up arms against the United States, as did Robert E. Lee and the rest of the Confederate generals? Do people of good faith hold others in cruel bondage, buy and sell them like chattel and forcibly compel their unpaid labor?

Kelly buys into the racist, revisionist, dripping-with-Spanish-moss version of history that white Southerners concocted as they were imposing the system of Jim Crow repression. Anyone ignorant enough to believe the war was about anything other than slavery should read the declarations issued by the Confederate states upon secession. Here is a quote from Mississippi’s proclamation, which is vile but at least forthright:

“Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization.”

Those who profited handsomely from slavery — including the growing financial markets of Wall Street and the bustling textile mills of New England — knew full well that it was wrong. They just didn’t want to give it up.

Kelly’s “good faith” historical claptrap would be bad enough in a vacuum. But it alarmingly echoes President Trump’s “many sides” analysis of the Charlottesville incident — and continues a tone that Trump set at the outset of his campaign, when he vilified Mexican immigrants as drug dealers and rapists.

. . . .

When Trump miscalibrates and strays into explicit racism, as he did in the case of Charlottesville, there are expressions of shock and horror from fellow Republicans and even members of his Cabinet. But nobody renounces him, except senators who are about to retire. Nobody quits his administration on principle. Trump’s enablers meekly go back to the all-important business of cutting rich people’s taxes.

Making whites feel embattled and aggrieved is central to the Trump presidency. It is what makes him different from all other recent presidents, perhaps going back as far as Woodrow Wilson, who imposed Jim Crow segregation on the federal workforce. It is what makes Trump so corrosive to the national fabric.

There is one master practitioner of identity politics in the United States today. Shamefully, he lives in the White House.”

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

Read Robinson’s entire op-ed at the link.

Yup! Hard to add much to this analysis! Kelly’s perverted account of the Civil War (although depressing) is not particularly surprising when you remember that this is a guy who bought into the Trump-Gonzo-Miller-Bannon racist and bogus “overrun by the immigrant hordes and Muslim terrorists” fear-mongering hook, line, and sinker, with no apparent reflection on its demonstrable falsity or stupidity.

PWS

11-05-17

“DYNAMIC DUO” LEADS “GW IMMIGRATION CLINIC BRIGADE” OF THE NEW DUE PROCESS ARMY (“NDPA”) INTO ACTION – ADVANCING AND DEFENDING DUE PROCESS RIGHTS FOR OUR MOST VULNERABLE RESIDENTS WHILE TEACHING THE NEXT GENERATION OF LAWYERS! — PLUS SPECIAL BONUS: Text of My Presentation To Clinic Entitled “RECLAIMING THE VISION – A PLAN FOR ACTION”

 

Alberto M. Benítez

Before joining the Law School faculty as director of the Immigration Clinic in 1996, Professor Benítez was on the faculty of the legal clinics at Chicago Kent College of Law and Northwestern University School of Law. Prior to becoming a clinician, he was a staff attorney at the Chicago Lawyers’ Committee for Civil Rights Under Law and the Legal Assistance Foundation of Chicago, as well as an intern at the Centro de Estudios Legales y Sociales in Buenos Aires, Argentina. Professor Benítez teaches Immigration Law. In addition, in the summers he has taught at the law schools of the Instituto Tecnológico Autónomo de México and the Universidad Panamericana, in Mexico City. In the spring 2003 semester Professor Benítez was a visitor at the Boyd School of Law of the University of Nevada at Las Vegas, assisting in the development of that law school’s immigration clinic.

Professor Benítez has devoted his entire legal career to working in the public interest, generally with aliens, and so he is familiar with immigration law in its proper context. Evictions, domestic violence, public benefits, etc., these are areas of law that influence the decisions made by the aliens. Professor Benítez was fortunate early in his career to be associated with several supportive, dedicated lawyers who enabled him to learn and progress from them. Therefore, he tries to pass on what he learned and how he learned it to his students, in particular the “learn by doing” system that his early colleagues used with him. That said, students will get out of their experience in this clinic and from their association with Professor Benítez what they put into it.

An Introduction to the United States Legal System by Professor Alberto Benitez

Paulina Vera

Paulina Vera, Esq. supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court. She previously served as the only Immigration Staff Attorney at the Maryland-based non-profit, CASA. Paulina is a 2015 graduate of The George Washington University Law School. During law school, she was a student-attorney at the Immigration Clinic and worked with Professor Benitez. She also interned at Kids in Need of Defense (KIND), American Immigration Council, and the Arlington Immigration Court. Paulina is admitted to practice law in Maryland and before federal immigration tribunals.

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

FORGET SESSIONS’S BOGUS SMEAR CAMPAIGN AGAINST “DIRTY IMMIGRATION LAWYERS” — THESE ARE THE “REAL FACES” OF AMERICAN IMMIGRATION LAW TODAY, FIGHTING TO PROTECT THE CONSTITUTIONAL RIGHTS OF ALL AMERICANS! — AND THEY AREN’T INTIMIDATED BY A DISINGENUOUS AND FEAR-MONGERING ATTORNEY GENERAL! 

I was pleased to be invited to speak to the GW Immigration Clinic on Thursday, Nov. 2, 2017.

 

I am, of course, particularly proud of my good friend the amazing Paulina Vera, who is a distinguished alum of both the GW Immigration Clinic and the Arlington Immigration Court Legal Intern Program!

 Here’s what I said:

 

 

RECLAIMING THE VISION – A PLAN FOR ACTION

 

BY PAUL WICKHAM SCHMIDT

UNITED STATES IMMIGRATON JUDGE (Retired)

 

The George Washington Law School Immigration Clinic

Washington, DC.

 

Nov. 2, 1017

 

 

Good afternoon, and thanks so much to you and my good friend and Alexandria neighbor Professor Alberto Benitez for inviting me. I want to express my deep appreciation for all of the great help that your Clinic gave to vulnerable migrants and to the Judges of the U.S. Immigration Court in Arlington, VA in carrying out our due process mission over the years that I was on the bench, from 2003 to 2016. I’m also delighted that the amazing Paulina Vera, a “distinguished alum” of the Arlington Immigration Court Internship Program is your Assistant Instructor.

 

Professor Benitez tells me that all of you have read my recent article from Bender’s Immigration Bulletin entitled “Immigration Courts: Reclaiming the Vision.” I of course was referring to the noble vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

 

As you also know, my article set forth a “five step” program for achieving this: 1) a return to Due Process as the one and only mission – ditching the current political manipulation of the courts; 2) an independent Article I Court structure, to replace the current outmoded “agency structure” in the DOJ: 3) professional court management along the lines of the Administrative Office for U.S. Courts and merit-based selection of judges; 4) an independent appellate body that functions in the manner of an Article III court, not as an “Agency Service Center;” and 5) an e-filing system to replace the current “files in the aisles.”

 

The question is how do we get there from here. Sadly, the individual who should be pushing these reforms, our Attorney General Jeff Sessions, has shown absolutely no interest in meaningful court reforms or protecting due process, beyond rather mindlessly proposing to throw many more new untrained judges into an already dysfunctional and disturbingly inconsistent judiciary and to force a system already careening out of control to “pedal even faster.” That’s a program for failure. Moreover, in my view, Sessions has demonstrated through his public statements and actions to date a clear pro-enforcement and anti-immigrant bias that makes him the wrong individual to be in change of a due process court system.

 

The other group who should be solving this problem is Congress. Immigration Court reform should be a bipartisan “no-brainer.” Both sides of the “immigration debate” should want a fair and efficient Immigration Court system that fully complies with due process, gets the results correct, and doesn’t accumulate huge backlogs. Unfortunately, however, Congress currently seems preoccupied with other issues that well might be less important to our country but more “politically expedient.” Although there is a fine draft “Article I Bill” floating around “The Hill,” prepared by the Federal Bar Association with input from the National Association of Immigration Judges, to date I am aware of no actual Congressional sponsor who has “thrown it in the hopper.”

 

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 like Paulina, my former students, and those who have practiced before the Arlington Immigration Court, and folks like you who have had the great leadership of Professor Benitez and others like him in Immigration, Refugee, and Asylum clinics throughout the country!

        

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 planned 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.

 

So, what you are doing here at the GW Immigration Clinic directly supports the Immigration Court reform movement by insuring that the system will not be able to continue to run over the rights of the unrepresented or underrepresented and that individuals who are unfairly denied relief at the Immigration Court and BIA levels are positioned to seek review in the independent Article III Courts.

 

I also 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. Additionally, 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.

 

The Federal Bar Association (“FBA) has been a strong moving force for court reform resulting in an Article I U.S. Immigration Court. So, becoming a “student member” of the FBA and getting involved with our local chapter is another way to support reform.

 

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.

In conclusion, 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. I’d be happy to take questions or listen to suggestions.

 

(11-05-17)

 

Here’s a link to the above text:

RECLAIMING THE VISION – A PLAN FOR ACTION

PWS

11-05-17