LAW360: BIA REMOVES IMMIGRATION JUDGE FOR ABUSIVE CONDUCT DURING HEARING!

https://www.law360.com/articles/999284/judge-s-hostile-and-bullying-acts-prompt-new-hearing

Kevin Penton reports for Law360:

“Law360, New York (January 5, 2018, 9:27 PM EST) — The Board of Immigration Appeals has vacated an immigration judge’s denials of a Salvadoran native’s bids to secure asylum and to duck deportation, after finding that the judge used “hostile and bullying behavior” toward the individual’s attorney.

The BIA wants a different judge to review the case, essentially from scratch, after finding that the Immigration Judge Quynh V. Bain “screamed” at the lawyer for more than five minutes, mimicked her voice, called her “several disrespectful names,” said she was “unprofessional” and refused to allow a recess…”

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Those with complete Law360 access can read Penton’s full story at the link. Kudos to the BIA for “stepping up” to stop such abuses and protect due process!

Surprisingly, and sadly, Judge Quynh V. Bain is one of my former colleagues at the U.S. Immigration Court in Arlington, Virginia. The Arlington Immigration Court generally has had a well-deserved reputation for fairness, professionalism, respect, teamwork, and unfailing courtesy. In other words, it’s always been a court where lawyers on both sides enjoy practicing. Indeed, it often serves as a “training court” for student attorneys, interns, new Assistant Chief Counsel, and newly appointed U.S. Immigration Judges. So, I’d have to assume that this was an aberration in the context of Arlington.

Nevertheless, given the high stress levels that U.S. Immigration Judges are already working under, the plans of Attorney General Jeff “Gonzo Apocalypto” Sessions to “torque up” the pressure on Immigration Judges to turn our final orders of removal without much, if any regard, for due process, the counter-pressure from the U.S. Courts of Appeals for Immigration Courts to function like “real” courts, the many newly appointed inexperienced Immigration Judges, and the lack of meaningful training for Immigration Judges, I would expect such incidents to increase in the future. Just another reason why it’s past time for an independent Article I U.S. immigration Court!

Changing to the topic of Law360, one of my favorite “immigration beat” reporters, Allissa Wickham (a/k/a the fabulous “AWick”) tells me that she has left Law360 for a “new gig” with HBO, working on a show featuring Wyatt Cenac (formerly of the “Daily Show”). The show is scheduled to air this spring. Allissa says that she will continue to do original reporting, so hopefully at least some immigration topics will find their way into her “portfolio.” Good luck Allissa, and thanks for all of your great immigration reporting, clear writing, and many contributions while at Law360!

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PWS

01-06-18

 

 

 

 

TRAC: IMMIGRATION COURT BACKLOG CONTINUES TO MUSHROOM TO NEARLY 660,000 CASES WITH NO END IN SIGHT!

Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. During the first two months of FY 2018, the Immigration Court number of pending cases climbed by an additional 30,000. According to the latest case-by-case court records, the backlog at the end of November 2017 had reached 658,728, up from 629,051 at the end of September 2017. Despite the hiring of many additional immigration judges, there has been no apparent slackening in the growth of this backlog. The rate of growth during the first two months of FY 2018 was in fact greater than the pace of growth during FY 2017.

California leads the country with the largest Immigration Court backlog of 123,217 cases. Texas is second with 103,384 pending cases as of the end of November 2017, followed by New York with 89,489 cases.

These and other findings are based upon very current case-by-case court records that were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. For further highlights see:

http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

And for full details, go to TRAC’s online backlog tool at:

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

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through November 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

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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Of personal interest to me, the U.S. Immigration Court in Arlington, Virginia now has a pending caseload approaching 40,000 cases! Yet, amazingly, the “powers that be” apparently are still detailing Arlington immigration Judges to other dockets! Talk about ADR in action! No wonder cases are being set for Individual Hearing dates 4-5 years in the future!

PWS

01-04-18

THE HILL: Nolan Says That Expedited Removal Can “Ease The Burden” Of Immigration Detention; I Don’t Think So!

http://thehill.com/opinion/immigration/365829-expedited-removal-can-solve-concerns-with-immigration-detention

Nolan Rappaport writes at The Hill:

“Earlier this month, the DHS Office of Inspector General (IG) released a report on “Concerns about ICE Detainee Treatment and Care at Detention Facilities.” According to the ACLU, the way to address the violationsdescribed in this “damning new report” is to “release people from immigration detention and prohibit ICE from using dangerous and inhumane jails.”

The IG found problems at four of the five detention centers it inspected, but it is a stretch to call the report “damning” or to claim that ICE is “using dangerous and inhumane jails.” Many of the problems were relatively minor, and, apparently, all of them are going to be corrected.

In addition to federal service centers, ICE uses facilities owned and operated by private companies and state and local government facilities. The contracts of facilities that hold ICE detainees require them to adhere to the 2000 National Detention Standards, the 2008 Performance-Based National Detention Standards (PBNDS), or the 2011 PBNDS.

. . . .

The immigration court backlog is so long that, as of October 2017, the average wait for a hearing was 691 days, and Trump’s backlog reduction plan isn’t going to bring it under control.

ICE cannot release detainees because wait-times are too long. Many of them will not return for their hearings. During FY2015, 23.4 percent of the aliens who were released from custody did not return for their hearings, and releases were limited to cases in which there was reason to expect the aliens to return.

I see only two solutions, reduce the backlog by removing aliens from the immigration court and disposing of their cases in expedited removal proceedings, which do not require a hearing before an immigration judge, or have a large legalization program.

Which alternative do you expect the Republicans to choose?”

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

Why Expedited Removal Isn’t the Answer (Leaving Aside The Substantial Legal and Moral Issues Involved):

  • Under Trump, DHS has already “maxed out” the use of expedited removal at the border. 
  • While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.
  • Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.
  • Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.
  • Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).
  • Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision  by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.
  • Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.

What Does Work:

  • Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g.,  http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf   
  • Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g.https://www.justice.gov/eoir/file/852516/download
    • Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
    • This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.
    • My own experience at the Arlington Immigration court was that individuals 1) represented by counsel , and 2) with applications for relief filed showed up for their hearings nearly 100% of the time. Indeed, beyond criminal record and family ties, those were the two most significant factors for me in setting immigration bonds.

An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative  ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.

PWS

12-23-17

MICA ROSENBERG @ REUTERS ANALYZES GONZO’S LATEST ATTACK ON CHILDREN (OR, IN “GONZOSPEAK” “UNMARRIED INDIVIDUALS UNDER THE AGE OF 18”) IN US IMMIGRATION COURT – No More “Mister Nice Guy” — Show ’em The Ugly Side Of America — These Kids Are Out To Get Us (Even If They Are So Scared, Confused, and Traumatized They Barely Know The Time Of Day)

https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-u-s-memo-weakens-guidelines-for-protecting-immigrant-children-in-court-idUSKBN1EH037

Mica reports:

“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.

An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”

The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.

The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.

‘WOLVES IN SHEEP CLOTHING’

Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.

Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”

The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.

While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.

Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”

Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”

Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”

“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”

In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.

The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.

Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”

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Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”

After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.

The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.

Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.

At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.

I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?

Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.

To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.

So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solution for getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?

But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reforms necessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.

PWS

12-23-17

NEW EOIR MEMO ENCOURAGES IMMIGRATION JUDGES TO DUMP ON UNACCOMPANIED CHILDREN (“UACS”) – “When In Doubt, Kick ‘em Out” New Motto Of Gonzo’s “Captive Courts!” — We’ve Come A Long Way From “Guaranteeing Fairness And Due Process For All” In A Short Time!

Responding to several recent “hate speeches” by Attorney General Jeff “Gonzo Apocalypto” Sessions, EOIR issued a new memorandum basically telling U.S. immigration Judges to revise their thinking and look for any way possible to “shaft” unaccompanied minors fleeing for their lives and asserting claims for protection under U.S. laws.

The memorandum from Chief U.S. mmigration Judge Marybeth Keller, dated Dec. 21, 2017, is available in full at this link:

http://www.aila.org/infonet/eoir-releases-memo-with-guidelines-for-immigration?utm_source=AILA+Mailing&utm_campaign=b0fd06181c-AILA8_12_20_2017&utm_medium=email&utm_term=0_3c0e619096-b0fd06181c-291958957

However, because it is drafted in dense bureaucratic doublespeak with a just a touch of “lip service” to the law, I will give you the “high points” as they would appear to most Immigration Judges:

  • The Attorney General hates UACS, and so should you if you want to keep your job.
  • While this Administration works on its announced plans to strip UACS of all statutory and Constitutional rights, you must always look for ways to effectively eliminate such “false rights” administratively in advance of any changes in the law.
  • Always look for ways to find that someone previously determined by DHS or the ORR to be a “UAC” is no longer, or never should have been, entitled to UAC benefits. 
  • The “best interests of the child” should NOT be an important consideration in an Immigration Court proceeding involving a UAC. 
  • Conversely, the “best interests of the Administration” should generally be given conclusive weight. 
  • Never let considerations of human empathy, misplaced kindness, false compassion, common sense, decency, or any other human emotion lead you to give a break or the benefit of the doubt to a UAC.  
  • Is is permissible, however, to create a false sense of informality and friendliness in your courtroom, so long as it doesn’t result in a grant of any type of protection or relief to the UAC. (Indeed, lulling a UAC into a false sense of comfort or security can be an effective strategy for insuring that he or she will not attempt to find a lawyer and will sign away or waive any rights.)
  • Remember that no matter how young, immature, discombobulated, confused, inarticulate, traumatized, or scared a UAC might be, he or she is NEVER entitled to appointed counsel or to any meaningful help from you in stating or supporting a claim for protection.
  • While all DHS requests should generally be treated as “priorities,” the only request from a UAC or his or her representative that should receive “priority” consideration is a request for immediate voluntary departure from the US. (You should never hesitate to grant such a request even if it appears to be the product of duress or against the UAC’s best interests.)
  • A good way to overcome the unfortunate tendency of some reviewing courts to find testimony of UACS “credible”” is to conclude that even if credible and facially sufficient to establish a claim for relief, the UAC’S testimony is “too generalized” or “not sufficiently detailed” (or any other kind of meaningless legal jargon you might come up with) to satisfy the “burden of proof” for protection.
  • Your main responsibility as an Immigration Judge, and the one for which you will be held accountable, is to ferret out and report fraud, not to insure fairness or due process for the UAC.
  • In discharging your duties as an Immigration Judge, you must always give primacy to the enforcement priorities of the Administration (including the overriding objective of deterrence and how it is advanced by REMOVAl orders, not relief) and the DHS over any legal claims advanced by a UAC. 
  • You should presume that all UACS and particularly any with “dirty” attorneys representing them are “fraudsters” unless and until otherwise established beyond a reasonable doubt. 
  • While it is permissible to present yourself to the public, and particularly to any reviewing courts Congressional, or media representatives as a “judge of a full due process court,” for all other purposes, you should always remember that you are a mere subordinate of the Attorney General, sworn to carry out his policies, and never, under any circumstances, should you consider yourself to be a “real judge” exercising independent judgement.
  • If you have any questions about this memorandum, please consult your ACIJ (who is specially trained to help you maximize final removals orders) rather than your conscience.
  • Remember: “When In Doubt, Kick ‘Em Out!”

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There was a time in the (seemingly now distant) past when children and other vulnerable individuals were considered appropriate for “special humanitarian consideration,” and treatment. Now, they are “special targets” for Gonzo and his White Nationalist storm troopers: “Fish in a barrel,” “easy numbers, “low hanging fruit,” “roadkill.”

I was particularly impressed (not necessarily favorably) by the straightforward exhortation for the Immigration Court to establish itself as perhaps the only court in the America where the widely accepted principle of “the best interests of the child” is specifically to be given short shrift.

On the other hand, you should think about the possibility that some day you’ll get the question “What did you do during Trump’s War on America, Mommy (or Daddy)?” Do you really want to say:  “I stood by and watched Gonzo Apocalypto abuse, harm, and in some cases kill, helpless children?” We all have choices to make!

PWS

12-21-17

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

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“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of  “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
JUST SAY NO TO GONZO!
PWS
12-21-17

MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!

https://www.washingtonpost.com/local/immigration/watchdog-report-finds-moldy-food-mistreatment-in-immigrant-detention-centers/2017/12/15/c97b380a-e10d-11e7-89e8-edec16379010_story.html

Maria’s always “on top” of the almost daily examples of cruel, intentionally inhumane, unconstitutional, wasteful “Gonzo” Enforcement by the Trump regime.  Here is some of what she reports on the deadly conditions in “NAG:”

“The inspector general for the Department of Homeland Security has criticized several immigration detention facilities for having spoiled and moldy food and inadequate medical care, and for inappropriate treatment of detainees, such as locking down a detainee for sharing coffee and interfering with Muslims’ prayer times.

Acting Inspector General John V. Kelly, who took over Dec. 1, said the watchdog agency identified problems at four detention centers during recent, unannounced visits to five facilities. The Dec. 11 report , released Thursday, said the flaws “undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.”

“Staff did not always treat detainees respectfully and professionally, and some facilities may have misused segregation,” the report found, adding that observers found “potentially unsafe and unhealthy detention conditions.”

Immigration and Customs Enforcement jails tens of thousands of immigrants for civil immigration violations, holding them until they are deported or released in the United States. The jails are not supposed to be punitive, according to the report.

ICE concurred with the inspector general’s findings and said it is taking action to fix the problems, some of which have already been addressed.

“Based on multi-layered, rigorous inspections and oversight programs, ICE is confident in conditions and high standards of care at its detention facilities,” the agency said in a statement. “To ensure the safety and well-being of those in our custody, we work regularly with contracted consultants and a variety of external stakeholders to review and improve detention conditions at ICE facilities.”

The Office of Inspector General said it launched the surprise inspections after receiving complaints from immigrant advocacy groups and on its hotline about treatment of detainees. The inspectors also interviewed staff members and detainees and examined records.

Advocates for immigrants said the report reaffirmed their long-standing calls for the detention facilities to be closed. Advocates have complained about reports of physical and sexual assaults, deaths in detention and other concerns for years under past presidents — and say their worries are increasing under President Trump.

Trump has pledged to dramatically increase deportations and is seeking congressional approval for more than 51,000 detention beds this fiscal year, up from about 30,000 under President Barack Obama.

Trump’s pick for the permanent director of ICE, Thomas D. Homan, previously ran the ICE detention system.

“The realities documented by the OIG inspectors, and many more, are endemic to the entire detention system,” Mary Small, policy director at Detention Watch Network, a nonprofit group that monitors immigration detention, said in a statement. “ICE has proven time and time again to be incapable of meeting basic standards for humane treatment.”

In a statement, Azadeh Shahshahani, legal and advocacy director of Project South, in Atlanta, cited the death in May of Jean ­Jimenez-Joseph.­ The 27-year-old Panamanian national was held in solitary confinement for 19 days at the Stewart Detention Center in rural Georgia, according to Project South.

Shahshahani said his death “should have served as a final wake-up call and resulted in the immediate closure of the facility.”

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

The Administration tries to hide, obscure, cover up, and bureaucratize what’s happening in the NAG. But, thanks to courageous reporters like Maria, the truth isn’t going to be suppressed. Read the rest of Maria’s report at the link.

Is this YOUR America? Is this the America you want YOUR children and grandchildren to read about and inherit?

Gee whiz, what were my parents and grandparents doing while neo-Nazis were invading the government and recreating the “Fourth Reich?”

And, when are the Article III Courts going to get some backbone to go with their lifetime sinicure and stand up for the Constitution and human decency before it’s too late? When good people stand by and do nothing, tyrants like Trump, Sessions, Homan, Bannon, and their corrupt supporters will have their way! 

Tell your legislators:

  • NO to Tom Homan as ICE Director;
  • NO to funding for the NAG; 
  • NO to funding DOJ’s corrupt defense of the NAG and Gonzo Immigration Enforcement;
  • NO to additional unneeded DHS Enforcement agents;
  • YES to legislative and criminal investigations of the unconstitutional activities of Gonzo, Nielsen, Homan, and their cronies and the human rights abuses they are knowingly creating by misusing the immigration laws;
  • YES to “Dreamer Relief” with “no strings attached;”
  • YES to immigration reform that legalizes law-abiding residents already here and provides additional legal visas for the future to end the “false criminalization” of needed workers and refugees!

Stand up for America as a Nation of Immigrants — Stand up for human decency — Stand against Trump, Nielsen, Sessions, Homan, Bannon, Miller and the other neo-Nazis promoting the NAG!

PWS

12-18-17

 

 

EXPOSED! — AILA’S JOHNSON SHOWS HOW “GONZO” INTENTIONALLY MISUSES DATA TO CREATE A FALSE ANTI-ASYLUM, ANTI-LAWYER NARRATIVE TO CONCEAL THE REAL GLARING PROBLEM DRIVING US IMMIGRATION COURT BACKLOGS — AIMLESS DOCKET RESHUFFLING (“ADR”) DRIVEN BY POLITICOS ATTEMPTING TO STACK THE COURT SYSTEM AGAINST DUE PROCESS AND TILT IT IN FAVOR OF DHS/ADMINISTRATION ENFORCEMENT INITIATIVES!!!!!!! — SURPRISE — By Far The Biggest Increase In Continuances Comes From DHS & EOIR Itself!

http://www.aila.org/advo-media/press-releases/2017/ag-sessions-cites-flawed-facts-imm-court-system

From AILA Executive Director Ben Johnson:

“Once again, the Attorney General cites flawed facts to castigate the immigration bar for the significant case backlog and inefficiencies in our immigration court system,” said Benjamin Johnson, AILA Executive Director. “He blames immigration attorneys for seeking case continuances, disregarding the fact that continuances are also routinely requested by counsel for the government, or are issued unilaterally by the court for administrative reasons. In fact, although the report cited by the Attorney General indicates an 18% increase in continuances requested by respondents, that same report found a 54% increase in continuances requested by the Department of Homeland Security (DHS), and a 33% increase in ‘Operational-related’ continuances. That said, continuances are often a necessary means to ensure due process is afforded in removal proceedings. The number one reason a continuance is requested by a respondent is to find counsel. Other reasons include securing and authenticating documentary evidence from foreign countries, or to locating critical witnesses. And when the government refuses to share information from a client’s immigration file and instead makes them go through the lengthy process of a Freedom of Information/Privacy Act request, a continuance is often a client’s only lifeline to justice. For the AG to blame immigration lawyers for imagined trespasses is both malicious and wrong. We will not let that misinformation pass without setting the record straight.

“The immigration court backlog is a function of years and years of government spending on enforcement without a commensurate investment in court resources. Our nation would be better served if the immigration courts were an independent judiciary, free from the auspices of the Department of Justice, where every immigrant has access to counsel. Immigration court is not small claims court or traffic court; each decision has the potential to tear apart families or keep them together, to destroy businesses or build our economy, to send someone back to certain death, or bring hope for a new and better life. Immigration judges should make those decisions with all information at hand, without any undue influence or arbitrary case completion requirements. That is a goal we can all work toward.”

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

Sure matches my observations from the latter part of my career at the U.S. immigration Court in Arlington, VA!

Probably 75% of the cases on my “Non-Detained Docket” were there NOT at the request of a respondent or his or her attorney. No, they were “mass transferred and continued” to my docket unilaterally by EOIR to fulfill “Border Priorities” established by the DOJ during the Obama Administration as an adjunct to changing DHS Enforcement priorities.

And, these weren’t “short continuances” to find a lawyer or prepare an application as might be requested by a respondent or a private bar lawyer. NO, these were “Merits Hearing” cases that had often been set for late 2016 or 2017 hearings before one of my colleagues, only to be “continued” by EOIR to my docket for dates many additional years in the future. Indeed, many of these cases were unilaterally removed by EOIR from “Individual Dockets” and “orbited” to my “Master Calendars” (arraignments) years in the future — indeed years after I would be retired. That’s because my docket was already completely full for several years when this chapter of ADR started.

And the same was true for my colleague Judge Lawrence O. Burman. Indeed, at the time I retired, Judge Burman and I were the ONLY judges hearing “nonpriority, non-detained cases” — even though those cases were BY FAR the majority of cases on the Arlington Court Docket. And, to make things worse, my “replacement” retired at the end of 2016 thus resulting in a whole new “round” of ADR. 

Talk about ADR driven by incompetent administration and improper political meddling from the DOJ. And, from everything “Gonzo” has said and I have heard about what’s happening at EOIR, such impropriety has become “normalized” under the Trump Administration.

No court system can run efficiently and fairly when the perceived interests of one of the parties are elevated over fairness, Due Process, equal justice, and reaching correct decisions under the law. No court system can run efficiently and fairly when control over day-to-day dockets is stripped from the local US Immigration Judges and Court Administrators and hijacked by officials in Washington and Falls Church driven by political performance objectives  not by practical knowledge and day-to-day considerations of how to construct and run a docket for maximum fairness and efficiency under local conditions (the most important of which is the an adequate number of pro bono lawyers to represent respondents).

NO OTHER MAJOR COURT SYSTEM IN AMERICA OPERATES THE WAY EOIR DOES! THAT SHOULD TELL US SOMETHING!

So, why is “Gonzo Apocalypto” being allowed to get away with misrepresenting the facts and intentionally running the Immigration Court system for the perceived benefit of one of the parties and against the interests of the other? There is a simple term for such conduct: Ethical Misconduct. Usually, it results in the loss or suspension of the offender’s license to practice law. Why is Gonzo above accountability?

PWS

12-12-17

WASHINGTON POST: “DEATH PENALTY IN TRAFFIC COURT” — BIG STAKES, LITTLE COURTS, FLAWED PROCEDURES, IMPROPER POLITICAL INFLUENCE, SOME JUDGES WHO FAIL TO PROTECT INDIVIDUAL RIGHTS LEAD TO LIFE-THREATENING ERRORS ON A DAILY BASIS IN OVERWHELMED U.S. IMMIGRATION COURTS. — What If YOU or YOUR Loved Were On Trial In This Godforsaken Corner Of Our Justice System Controlled By Jeff “Gonzo Aocalypto” Sessions!

https://www.washingtonpost.com/opinions/a-mexican-journalists-life-hangs-in-the-balance/2017/12/11/9783ab1a-deac-11e7-8679-a9728984779c_story.html

The WashPost Editorial Board writes:

“As he awaits his fate in a remote Texas jail, Mr. Gutierrez, 54, remains convinced of the peril he faces if deported to his native country. “My life depends on this [appeal],” he said by telephone in a news conference organized Monday by the National Press Club. “I’m terrified to set foot in Mexico.”

The judge who denied asylum in the case, Robert S. Hough, pointed to an absence of documentary and testimonial corroboration of Mr. Gutierrez’s claim. The woman who relayed word of the alleged death threat did not come forward; neither did Mr. Gutierrez’s former boss at the newspaper for which he worked in Chihuahua. Much of Mr. Gutierrez’s case comes down to his word.

Nonetheless, the judge’s cut-and-dried application of the law fails to take into account conditions in Mexico generally and the peril faced there by journalists in particular. It’s not surprising that Mr. Gutierrez cannot recover copies of his articles, written more than a decade ago for a regional newspaper. Nor is it unusual that witnesses are reluctant to come forward, given the fear with which many Mexicans regard the security forces.

As a U.N. report published this month concluded, citing the deaths, disappearances and attacks on dozens of journalists tallied by Mexico’s Human Rights Commission, “The data . . . presents a picture for the situation of journalists in Mexico that cannot be described as other than catastrophic.” Against that background, it seems cavalier to dismiss the threat Mr. Gutierrez faces should he be deported to Mexico. He should be granted asylum.”

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

Read the complete Editorial at the link.

Unfortunately, a “cut and dried application of the law” without proper regard to the facts or reality is a disturbingly accurate snapshot of what all too often happens daily in our Immigration Courts, a “wholly owned subsidiary” of the US Department of Justice and part of the “Trump Conglomerate” (formerly known as the US Government).

Our failing US Immigration Court system and its aggravation by AG “Gonzo Apocalypto’s” oft-expressed hostility to immigrants, asylum, the rule of law (except his 1950s “Jim Crow” views on the law and how it should be a tool for injustice and advancing White Nationalism), lawyers, Latinos, Mexicans, and the press has become an almost daily topic for major editorial boards. At least someone (other than me) is watching and documenting as this mockery of American justice unfolds before us.

In particular, too many U.S. Immigration Judges are tone-deaf to Mexican asylum claims, not wanting to be accused of “opening the floodgates” ( a concept that is nowhere to be found in the actual law) and knowing that “Gonzo” wants lots of  “quick removals” rather than asylum grants.  Additionally, the only administrative check on the Immigration Judges’ authority is a weak Appeals Board that never “calls out” overly restrictive Immigration Judges by name and seldom publishes precedents granting asylum. Truly, a prescription for a “Due Process Disaster!”

Judge Hough seems to have forgotten that under the law:

  • ”Corroborating evidence” can only be required if it is “reasonably available;”
  • Testimony may be corroborated by country condition information describing the same abuses that the applicant claims;
  • The standard for granting asylum is a  generous “well-founded fear” or “reasonable likelihood” of future harm which can be “significantly less than probable — as little as a 10% chance can suffice;
  • Asylum applicants are supposed to be given the “benefit of the doubt” in recognition of the evidentiary challenges of providing proof of persecution and the difficulties of relating traumatic events in the past.

It remain to be seen whether the Board of Immigration Appeals, EOIR’s “Appellate Court,” will correct Judge Hough’s life-threatening errors and, further, issue a strong precedent on asylum for foreign journalists (traditionally one of the most vulnerable and persecuted groups) to prevent further miscarriages of Justice such as this. Such a precedent would also discourage the DHS from continuing to abuse our system by pushing for removal (and needless detention) in cases such as this where a grant of asylum at the DHS  Asylum Office or at the hearing following the testimony would be the correct result.

Or, will the next major editorial describe and decry Mr. Gutierrez’s death in Mexico!

In a well-functioning justice system, this case should have been a “Short-docket, No-brainer Grant.” But, Gonzo Apocalypto seeks to use the US Immigration Courts as an extension of DHS enforcement rather than, as they were intended, as Courts guaranteeing fairness, Due Process, and equal justice for all! We need change. Lots of it!

[NOTE: For those interested, Judge Hough apparently has not decided enough asylum cases on the merits in El Paso to be listed on the statistical profile of asylum outcomes maintained by TRAC Immigration.]

PWS

12-12-17

 

WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”

https://www.washingtonpost.com/opinions/trumps-deportation-tough-talk-hurts-law-abiding-immigrants/2017/12/10/9a87524a-a93b-11e7-850e-2bdd1236be5d_story.html

The Post Editorial Board writes:

“The broader dysfunction in America’s immigration system remains largely unchanged. Federal immigration courts are grappling with a backlog of some 600,000 cases, an epic logjam. The administration wants to more than double the number of the 300 or so immigration judges, but that will take time. And its recent moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.

Mr. Trump’s campaign bluster on deportation was detached from reality. He said he’d quickly deport 2 million or 3 million criminal illegal immigrants, but unless he’s counting parking scofflaws and jaywalkers, he won’t find that many “bad hombres” on the loose. In fact, legal and illegal immigrants are much less likely to end up in jail than U.S. citizens, according to a study by the Cato Institute.

The president’s sound and fury on deportation signify little. He has intensified arrests, disrupting settled and productive lives, families and communities — but to what end? Only an overhaul of America’s broken immigration system offers the prospect of a more lasting fix.”

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

Read the full article at the link.

The Post also points out the damage caused by Trump’s racist “bad hombres” rabble rousing and the largely bogus nature of the Administration’s claims to be removing “dangerous criminals.” No, the latter would require some professionalism and real law enforcement skills. Those characteristics are non-existent among Trump Politicos and seem to be in disturbingly short supply at DHS. To crib from Alabama GOP Senator Richard Shelby’s statement about “Ayatollah Roy:” Certainly DHS can do better than Tom Homan.

And certainly America can do better than a US Immigration Court run by White Nationalist Attorney General Jeff “Gonzo Apocalypto” Sessions. Gonzo’s warped concept of Constitutional Due Process is limited to insuring that he himself is represented by competent counsel as he forgets, misrepresents, misleads, mis-construes, and falsifies his way through the halls of justice.

Jeff Sessions does not represent America or American justice. The majority of American voters who did not want the Trump debacle in the first place still have the power to use the system to eventually restore decency, reasonableness, compassion, and integrity to American Government and to send the “Trump White Nationalist carpetbaggers” packing. The only question is whether or not we are up to the task!

PWS

12-12-17

 

FOURTH CIRCUIT JOINS 9TH, 2d, & 6TH IN REVERSING BIA’S OVERLY RESTRICTIVE READING OF ASYLUM ELIGIBILITY – ADDITIONAL EVIDENCE OF A PRE-EXISTING CLAIM CAN BE A “CHANGED CIRCUMSTANCE” JUSTIFYING “LATE” ASYLUM FILING! — ZAMBRANO V. SESSIONS (PUBLISHED)!

4th Cir on changed circumstances-1yr

Zambrano v. Sessions, 4th Cir., 12-05-17 (published)

PANEL: KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION BY: Judge Gibney

KEY QUOTE:

“This Court agrees with the logic of the Ninth, Second, and Sixth circuits. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. The Court remands to the BIA and leaves the determination of whether the facts on record constitute changed circumstances which materially affect the petitioner’s eligibility for asylum to the BIA’s sound discretion.

III.
The BIA erred when it categorically held that additional proof of an existing claim

does not establish changed circumstances. Accordingly, we grant the petition for review, vacate the BIA’s order, and remand the case to the BIA for further consideration in light of this opinion.”

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

This is a very important decision for asylum applicants in the Fourth Circuit, as this situation arises frequently in Immigration Court.

With three well-reasoned Circuit decisions already in the books, why is the BIA holding out for a discredited rationale? How many individuals who weren’t fortunate enough to have Ben Winograd or an equally talented lawyer argue for them in the Court of Appeals have already been wrongfully removed under the BIA’s discredited rationale? Where’s the BIA precedent adopting this rationale and making it binding on IJ’s nationwide before more individuals are wrongfully removed? How is this “through teamwork and innovation being the world’s best administrative tribunal guaranteeing fairness and due process for all?”

The answer to the latter question is sadly obvious. While the BIA’s problems predated his tenure, the attitude of Attorney General Jeff Sessions, as demonstrated in his recent pronouncement on so-called “Immigration Court efficiency” elevates “false efficiency,” speed, and cranking out removals above fundamental fairness and Due Process. Why have an elaborate administrative court system that doesn’t put Due Process first and foremost as “real” (non-captive) courts generally do? Why not just send all removal cases to U.S. District Judges and Magistrate Judges who make Due Process and fairness “job one” and aren’t preoccupied with “jacking up” removal statistics to please political bosses?

And, I’d like to see how far the DHS/Sessions’s (they are pretty much the same these days) boneheaded, arrogant, unrealistic, and wasteful “no PD” policy would get in a “real” court system where widespread, reasonable, and prudent use of PD by prosecutors is understood and accepted as an essential part of fairness, efficiency, and responsible use of publicly-funded judicial resources. Indeed, in some of my past “off the record” conversations with Article III Judges, they were absolutely flabbergasted to discover the unwillingness of DHS to meaningfully exercise “PD” in the pre-Obama era and to learn that at DHS the “cops,” rather than the prosecutors were responsible for setting PD policies!

PWS

12-08-17

 

ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!

I’ll be on two local radio shows hosted by Richmond Attorney Pablo Fantl tomorrow.

Both are am radio stations, and are available online.  They also will broadcast on Facebook Live, and will be available in the archives afterwards.  I will post links on immigrationcourtside.com once the recordings are available.

From 11:30-12:30     Radio Poder 1380 am   http://www.wbtk.com/

From 1:00-2:00         Maxima 1320 am          https://maxima1320.com/

These are programs directed at informing the Hispanic community in Richmond. Although I’m not bilingual, Pablo has promised excellent interpretation services. And, gosh knows, I’m pretty used to being translated into many languages from my days on the immigration bench.

Hope you’ll “tune in!”

PWS

12-07-17

 

 

DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”

http://www.immigrantjustice.org/research-items/report-what-kind-miracle-systematic-violation-immigrants-right-counsel-cibola-county

A new in-depth study by the National Immigrant Justice Center (“NIJC”) shows how the Administration is intentionally using detention to deny Constitutional Due Process of Law to some of the most vulnerable:

“Introduction

Cibola County Correctional Center in Milan, New Mexico

When Donald Trump was elected president, the immigration detention system was already mired in such dysfunction that it routinely threatened the lives of those trapped inside. More than a year later, the administration intentionally uses its broken network of hundreds of immigration jails to advance an agenda that prioritizes mass deportation above respect for basic rights. This report focuses on the Cibola County Correctional Center, a prison complex in rural New Mexico owned and operated by the private prison giant CoreCivic (formerly Corrections Corporation of America)1 with the capacity to jail 1,100 immigrants facing deportation. Located far from any major urban center in a state with no immigration court, the prison has become a black hole of due process rights.

The National Immigrant Justice Center (NIJC) is particularly alarmed by the lack of meaningful access to counsel at the Cibola prison. Federal immigration law allows immigrants the right to counsel in deportation proceedings, but immigrants must locate and pay for it themselves. Immigrants detained in Cibola and many other immigration jails nationally are unable to avail themselves of this right because the capacity of nearby legal service organizations to provide representation is dwarfed by the need. An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time — six percent of the jail’s population in April 2017. The due process violations occurring at Cibola and other Department of Homeland Security (DHS) prisons are the latest consequences of the Trump administration’s scheme to jail so many immigrants, and in such remote locations, that their right to representation is rendered meaningless.

An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time – six percent of the jail’s population in April 2017.

In light of DHS’s systematic and willful rights violations, NIJC calls on the agency to close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel, and demands that Congress immediately cut funding for DHS’s enforcement and detention operations. (See Recommendations.)

U.S. Immigration Detention National Average Daily Population From 1994 To 20172
U.S. Immigration Detention National Average Daily Population from 1994 to 2017
. . . .
Cibola County Correctional Center in Milan, NM

 

The Future Of Immigration Detention: Why Cibola Matters

DHS paid little heed to the dearth of affordable legal services near Cibola when it entered its agreement with Cibola County and CoreCivic. Such a lapse is by no means new or unique. DHS has grown and maintained the immigration detention system in a manner incompatible with civil rights and due process protections.

In many ways, the Trump administration inherited an immigration detention system already riddled with abuse and neglect. Detained individuals, advocacy organizations including NIJC, and DHS’s Office of Inspector General have reported for decades on the profoundly inhumane conditions pervasive throughout the detention system, including: the excessive and arbitrary use of solitary confinement;22 inadequate, unsafe and spoiled food service;23 abuse of force by officers;24 and deaths attributable to medical negligence.25 Rather than assess possible reforms to address these problems—as the non-partisan Homeland Security Advisory Council advised in late 201626—the Trump administration quickly implemented changes that exacerbated existing harms. Today, DHS jails approximately 40,000 immigrants daily —more than any administration in recent history27— and holds them longer.28 The administration has publicly embraced the use of prolonged detention for asylum seekers29 and moved to weaken the standards governing conditions of detention.30

The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.

Immigrants in detention centers throughout the country face the same frustrations as those jailed at Cibola when they try to find a lawyer. Nationally, fewer than one in every five immigrants in detention is able to find a lawyer.31 The Los Angeles Times recently reported that about 30 percent of detained immigrants are jailed more than 100 miles from the nearest government-listed legal service provider,32 with a median distance between the facility and the service provider of 56 miles.33

Access to counsel is important. Unrepresented, a detained immigrant, who often does not speak English, must develop her own legal arguments for relief eligibility, gather evidence that is often only available from within her country of origin (where she may fear for her own or her family’s safety), complete an application in English, and present a coherent presentation of her case to an immigration judge, all while a government-funded DHS prosecutor argues for her deportation.34 Faced with such a daunting task, immigrants enduring the isolation of detention are far less likely than those living in the community to defend against deportation and less likely to win their cases when they do so. The psychological harms caused by detention, especially for those with previous histories of torture or trauma,35 are so debilitating that even those with the strongest claims to legal protection in the United States often abandon the process and choose deportation instead.36 Detained immigrants with lawyers are 11 times more likely to pursue relief and are at least twice as likely to obtain relief as detained immigrants without counsel.37 A study analyzing the impact of appointed counsel for detained immigrants in New York City found a 1,100 percent increase in successful outcomes when universal representation became available..38

There is no doubt that DHS knows what it is doing. NIJC’s 2010 report Isolated in Detention documented the due process crisis already unfolding in the immigration detention system. At that time, NIJC found that 80 percent of detained immigrants were held in facilities that were severely underserved by legal aid organizations, with more than 100 immigrants for every full-time nonprofit attorney providing legal services.”40 The report presented eight recommendations to DHS and the Department of Justice to improve access to legal counsel for detained immigrants.41 Not one of the recommendations has been adopted or implemented by either agency.

Recently, DHS announced its interest in building new prisons in or near southern Texas; Chicago, Illinois; Detroit, Michigan; St. Paul, Minnesota; and Salt Lake City, Utah. The agency stated its goal was to increase the system’s capacity by up to 4,000 more beds.42Legal aid organizations in these regions sent a letter to DHS explaining that they would have little or no capacity to provide meaningful access to counsel if the government carries out this expansion.43 As of publication of this report, DHS has not responded to this letter nor contacted any of the organizations to assess access to legal counsel.

The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.

When the administration flaunts its record rates of deportations, it is telling a story of what happens to immigrants like Christopher and hundreds of others at Cibola who face insurmountable barriers to justice, not describing a legitimate outcome of enforcement of United States law. Jailing immigrants during their deportation proceedings makes it significantly more likely they will be deported, regardless of the merits or strength of their defense to deportation. At Cibola and prisons like it throughout the United States, incarceration has become another weapon in the administration’s arsenal, intended to facilitate mass removals no matter the cost to due process or civil rights.

 

Recommendations

DHS must close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel.

Congress must cut appropriated funds for immigration detention, in light of the civil rights and due process crisis within the system.

Specifically, Congress must:

  1. Cease funding to detain individuals where there is no evidence of flight or security risk.
  2. Engage in robust oversight to ensure that when DHS does utilize detention, funding is only available for facilities where there  is sufficient access to legal counsel (an established immigration bar) and adequate health care for individuals in detention.

 

A Note On Methodology

For the survey cited in this report, the National Immigrant Justice Center (NIJC) undertook a census of all the attorneys we could identify who regularly practice immigration law in New Mexico and Texas. The intent was to determine 1) the number of attorneys available to take immigration cases out of the Cibola County Correctional Center and 2) the maximum number of cases each attorney could take at a given time. NIJC staff identified all attorneys in New Mexico who, as of July 2017, were members of the American Immigration Lawyers Association (AILA), the primary membership association for immigration attorneys in the United States (identified using the membership directory at http://www.aila.org/member-directory). Through informal conversations with AILA members and legal aid organizations, NIJC staff added other New Mexico- and Texas-based attorneys to the list who were identified as providing even minimal legal representation at Cibola. NIJC staff and interns reached out to each of these attorneys via email and telephone. NIJC communicated directly via phone or email with an attorney or authorized staff person at all but nine of the 60 offices on the final list. Each attorney was asked whether they were able and willing to provide legal representation to individuals detained at Cibola, for a fee or on a low-cost or pro bono basis, and if so approximately how many cases they could take at maximum capacity. The detailed results of this census are on record with NIJC.

In addition to these census questions, NIJC staff held more extensive interviews with staff members at the following nonprofit legal service providers: Catholic Charities of Southern New Mexico (Las Cruces, NM); Diocesan Migrant and Refugee Services (El Paso, TX); Instituto Legal (Albuquerque, NM); Las Americas Immigrant Advocacy Center (El Paso, TX); the New Mexico Immigrant Law Center (Albuquerque, NM); and Santa Fe Dreamers Project (Santa Fe, NM). Additionally, in June 2017 NIJC staff members visited the Cibola prison, where they spoke with 12 individuals detained at the facility whose insights inspired and contributed to this report. Notes from these conversations are on record with NIJC. Notes from all of these conversations are on record with NIJC.

Acknowledgements

The principal authors of this report are NIJC Director of Policy Heidi Altman and NIJC Director of Communications Tara Tidwell Cullen, with research and editing contributions from NIJC colleagues Keren Zwick, Diane Eikenberry, Mary Meg McCarthy, Claudia Valenzuela, Julia Toepfer, and Isabel Dieppa. NIJC interns Linda Song and Anya Martin also contributed to this report. Sincere thanks for insights and support from Jessica Martin and Rebekah Wolf of the New Mexico Immigrant Law Center, Allegra Love of the Santa Fe Dreamers Project, Yazmin Ruiz of United We Dream, and the detained immigrants whose experiences are described in this report.

All photos credit the National Immigrant Justice Center.”

 

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Read the complete report at the link.

NIJC confirms what most of us involved in the immigration justice system already know — that the Trump Administration has “doubled down” on the Obama Administration’s misguided detention policies to create an “American Gulag.” A key feature of the Gulag is using captive so-called “U.S. Immigration Courts” in prisons. Such “captive prison courts” actually are parodies of real independent courts empowered to require Due Process for migrants and adherence to the rule of law. Immigration detention is a national disgrace for which all of us should be ashamed.

But, don’t expect any improvement from the Trump Administration unless the Article III Courts require it or we get a different Congress at some point. (I note that a few Democrats have honed in on this issue and introduced the “Dignity for Detained Immigrants Act” which unfortunately is DOA in this Congress.) Given the performance of the Article IIIs to date in this area, and the Trump Administration’s “quietly successful” program to stock the Article IIIs with right-wing ideologues, I wouldn’t count on that either. On the other hand, I’ve seen even very committed conservative jurists reach their “breaking point” on Government immigration abuses once they become life-tenured Federal Judges and are no longer directly accountable to their right-wing “political rabbis.” Denial of statutory, Constitutional, and Human Rights sometimes crosses over ideological fault lines.

Kudos to my good friends and dedicated defenders of Due Process and Human Rights Heidi Altman and Diane Eikenberry of the DC Office of the of the NIJC/Heartland Alliance for their leadership role in exposing these continuing abuses and making a record for future generations to understand and hopefully act on our current failure to make “equal justice for all” a reality in America and the related failure of our U.S. Immigration Courts to live up to their commitment to use “best practices” to “guarantee fairness and due process for all.”

PWS

12-05-17

“THIRD WORLD AMERICA” — GOP ON THE VERGE OF “DECONSTRUCTING” GOVERNMENT, PUBLIC SERVICES, HEALTH, & EDUCATION AT ALL LEVELS TO HAND OUT FAVORS TO THE RICH — PARTY OF “REVERSE ROBIN HOOD” ABOUT TO “SCORE A BIG ONE“ FOR THE ALREADY OVERPRIVILEGED AT THE EXPENSE OF EVERYONE ELSE! –“This tax bill is a grand deception,” said Arnold Hiatt, the former chief executive of Stride Rite, which makes children’s shoes. “It hurts the most vulnerable, and hurts health care and education, which are essential for a healthy economy.”

https://www.nytimes.com/2017/11/29/business/republican-tax-cut.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news

“Economists and tax experts are overwhelmingly skeptical that the bills in the House and Senate can generate meaningful job growth and economic expansion. Many view the legislation not as a product of genuine deliberation, but as a transfer of wealth to corporations and affluent individuals — both generous purveyors of campaign contributions. By 2027, people making $40,000 to $50,000 would pay a combined $5.3 billion more in taxes, while the group earning $1 million or more would get a $5.8 billion cut, according to the Joint Committee on Taxation and the Congressional Budget Office.

“When you put all these pieces together, what you’re left with is we are squandering a giant sum of money,” said Edward D. Kleinbard, a former chief of staff at the Congressional Joint Committee on Taxation who teaches law at the University of Southern California. “It’s not aimed at growth. It is not aimed at the middle class. It is at every turn carefully engineered to deliver a kiss to the donor class.”

In a recent University of Chicago survey of 38 prominent economistsacross the ideological spectrum, only one said the proposed tax cuts would yield substantial economic growth. Unanimously, the economists said the tax cuts would add to the long-term federal debt burden, now estimated at more than $20 trillion.

If the package does have a guiding philosophy, it is a return to trickle-down economics, an enduring story line in which the wealthy are supposed to spend and invest their tax breaks, creating jobs and commercial opportunities for everyone else.

As President Ronald Reagan slashed taxes in the 1980s, he argued that citizens, not bureaucrats, should decide how to spend their money. President George W. Bush bestowed enormous tax cuts on the affluent.

But the trickle-down story has yet to achieve its promised happy ending. Only the beginning reliably transpires, the part where wealthy people get relief. The spoils of resulting economic growth have largely been monopolized by those with the highest incomes. Pay for most American workers has been stagnant since the mid-1970s, after the rising costs of housing, health care and other basics are factored in.

Nonetheless, Republicans are staging a trickle-down revival.

“Either it’s a religious belief, a belief where no amount of evidence would change that, or they are using the argument cynically and they just want more money for themselves,” the economist Joseph E. Stiglitz, a Nobel laureate, said.

Mr. Stiglitz has long warned of the perils of growing inequality while deriding tax-cutting inclinations. Yet even those who have favored lighter tax burdens are critical of the current proposals.

In the late 1970s, Bruce Bartlett developed what would become the locus of the Reagan tax cuts while working for Representative Jack Kemp, a conservative Republican from New York. Those cuts helped cushion the pain from sharp increases in interest rates by the Federal Reserve, Mr. Bartlett maintains. But Reagan was lowering the highest tax rate on individuals from 70 percent down to 28 percent by 1986.

“What they have here is a big tax cut for the rich paid for with random increases in taxes for various constituencies,” Mr. Bartlett said. “It’s ridiculous. And it’s telling that they are ramming this through without any debate. All of the empirical evidence goes against the tax cut.”

 

The meat of the package is a permanent lowering of the corporate tax rate, to 20 percent from 35 percent, which business leaders have long wanted. Proponents assert that this would prompt multinational companies to expand operations in the United States.

“We’ve been bleeding corporate headquarters and production for a long time,” said Douglas Holtz-Eakin, a former director of the Congressional Budget Office and now president of the American Action Forum, a nonprofit that promotes smaller government.

But recent history suggests that when corporations get tax relief, they find abundant uses for money that do not involve paying higher wages. They give dividends to shareholders and stock options to executives. They stash earnings in tax havens.

In 2004, Congress invited American corporations to bring home overseas earnings at a sharply reduced rate, pitching it as a means of bolstering investment. But the corporations spent as much as 90 percent of their windfall buying back their shares, according to Bureau of Economic Analysis research.

If Congress bestows fresh relief on major businesses, signs suggest a similar result. Many companies are enjoying record profits. Those in the Fortune 500 had $2.6 trillion salted away overseas as of last year.

“In our boardroom, the number-one thing we’re talking about is not taxes,” said Jeremy Stoppelman, chief executive of Yelp, the online review platform. “Having a strong middle class out there spending money is what’s most important for our business.”

If the tax bill widens inequality, local communities will likely find themselves with fewer resources to aim at helping struggling people.

A key feature of the Senate bill is the elimination of a federal deduction for state and local taxes. Conservative groups like the Heritage Foundation and American Legislative Exchange Council have sought to end the deduction as a means of reining in government spending.

In high-tax states like California, New York, New Jersey and Connecticut — where electorates have historically shown a willingness to finance ample safety-net programs — the measure could change the political calculus. It would magnify the costs to taxpayers, pressuring states to stay lean or risk the wrath of voters.

Some see in this tilt a reworking of basic principles that have prevailed in American life for generations.

. . . .

Since the 1930s, when President Franklin D. Roosevelt created Social Security, unemployment benefits and other pillars of the safety net to combat the Great Depression, crises have been tempered by some measure of government support. Recent decades have brought cuts to social services, but the impact of the current bill could be especially consequential.

“This is a repudiation of the social contract that Franklin Roosevelt announced at the New Deal,” Joseph J. Ellis, a Pulitzer Prize-winning American historian, said of trimming benefits for lower- and middle-income families to finance bigger rewards for the wealthy. Health coverage would shrink under the Republican plan while multimillion-dollar estates would not have to pay a penny in taxes.

The tax cut package, for instance, could trigger rules mandating cuts to Medicare, the government health care program for seniors, the Congressional Budget Office warned. Some 13 million people could lose health care via the elimination of a key plank of Obamacare. Insurance premiums are also expected to rise by 10 percent.

“This tax bill is a grand deception,” said Arnold Hiatt, the former chief executive of Stride Rite, which makes children’s shoes. “It hurts the most vulnerable, and hurts health care and education, which are essential for a healthy economy.”

The proposals break from seven decades’ worth of federal efforts to broaden access to higher education.

Since World War II, the guiding sense has been that “it is government’s responsibility to provide higher education for all those who can benefit from it,” said David Nasaw, a historian at the Graduate Center of the City University of New York. That idea was behind the G.I. Bill, which helped generations of veterans pay for college and training.

The House bill includes provisions that would end the deductibility of tuition waivers for graduate students and repeal the deduction for interest paid on student loans. Both chambers’ bills would tax investment earnings from university endowments.

The endowment tax, in particular, threatens the ability of low-income students to pursue college and graduate studies, said Ron Haskins, a senior fellow at the Brookings Institution. Proceeds from endowments subsidize students from lower-income families, while allowing students across the board to graduate with less debt.

“When the time of reckoning comes to fix huge deficits, social safety-net programs will be first on the chopping block,” Julian E. Zelizer, a professor of history and public affairs at Princeton University, said.

“It’s very far-reaching,” he added, “but there hasn’t been much of a debate.”

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Read the complete, revealing but disturbing, article at the link. We’re ultimately going to look more like a (at least temporarily) well-to-do “Banana Republic” with the rich on top and in power; everyone else scrambling; lots of excess guns and ammo; and a lower standard of living for average folks to support the privileged power class. And, the GOP has managed to pull all of this off at the ballot box and without any true debate or public accounting, relying on the overall inability of the electorate to figure out that they are being fleeced by their own representatives. Pretty impressive!

PWS

11-30-17

ICE’S “IN YOUR FACE” COURTHOUSE ARREST POLICY ERODES OUR CONSTITUTOINAL SYSTEM OF JUSTICE!

https://www.nytimes.com/2017/11/26/opinion/immigration-ice-courthouse-trump.html?em_pos=large&emc=edit_ty_20171127&nl=opinion-today&nlid=79213886&ref=headline&te=1&_r=0

PROFESSOR CÉSAR CUAUHTÉMOC GARCÍA HERNÁNDEZ writes in the NY Times:

“At the door of the Lindsey-Flanigan Courthouse in Denver one Friday in April, federal Immigration and Customs Enforcement agents tackled a man to the ground. A chilling video shows the man — who, according to his lawyer, was there to deal with a traffic ticket — yelling “No!” “My hand!” and “Why?” in Spanish. Sheriff’s deputies order passers-by to stand back, and the violent arrest continues.

The next month, ICE agents returned and arrested another man. His lawyer can be heard in a video of the incident asking the agents if they had a warrant. One responds, “Yes, sir.” The lawyer asks, “Can I see it?”

The agent’s response: “No, sir.”

Both men, according to their lawyers, were taken to immigration detention centers.

This type of arrest is on the rise. Lawyers and judges in Arizona, California, Colorado, Connecticut, New Jersey, New York, Oregon, Texas and Washington all reported in the first year of the Trump administration that immigration officials were breaking with tradition to descend upon their courthouses. Such arrests in New York have increased by 900 percent in 2017, according to the Immigrant Defense Project.

This is a deeply worrisome trend because arrests at courthouses don’t just derail the lives of the unsuspecting people who are detained, they threaten the very operation of our judicial system. Such arrests scare people away from the courts, keeping them, for example, from testifying at trials or seeking orders of protection. By using this tactic, the nation’s lead immigration law enforcement agency is undermining a pillar of our democracy.

. . . .

Courthouses have a special place in American society. It’s only in a court of law that we can be confident that disputes will be mediated deliberately, and according to a set of rules intended to ensure justice for all parties. As the Supreme Court declared in 1907: “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.”

The pursuit of justice depends on getting the parties in the same room. That’s why courts have the power to drag in unwilling participants with subpoenas. They can compel witnesses to testify or risk contempt charges. Courts rely on their hard-earned legitimacy as the rightful locations for resolution of disagreements.

Courthouse arrests by ICE deter not only undocumented immigrants but also people who are here legally but are nervous that they might have somehow compromised their status (or that an officer will think they have). That’s a nuance that is next to impossible for the average person to discern, and those complicated legal questions are exactly what immigration judges spend a lot of energy trying to answer.

. . . .

The harm this causes is bigger than the people whom ICE arrests. United States citizens are not immune to the impact of ICE activity in courthouses. All of us — including those of us who could easily prove our immigration status — depend on courts to do their job, and all of us suffer if the fear of ICE keeps people away.

ICE understands its actions can paralyze important institutions. Longstanding ICE policy discourages questioning or arresting people in schools and churches. It is time to add courthouses to that list. But top administration officials have vigorously defended courthouse arrests.

With no change to federal policy in sight, it is up to cities and states to push back. Elected officials must take seriously their legal obligation to keep courthouses accessible. In addition, the cities and states that own and operate most courthouses and ensure that no one uses their courts in a way that halts judicial business — protesters can’t block the doorway, bail bondsmen aren’t allowed to set up shop in the lobby — should do the same here for immigration agents.

ICE should no longer get free rein to tackle, handcuff and haul away immigrants, sending a message to others that they should think twice before trusting in the courts.