LA TIMES: Retired U.S. Immigration Judge Bruce J. Einhorn Speaks Out For Due Process — Challenges City Of L.A. To Provide Lawyers For Those Facing Removal!

Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:

“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.

Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.

With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.

A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.

All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.

. . . .

After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”


Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.

Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.

Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.

Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.

But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.

Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.

But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).

Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.

Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.

It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.

Only the Article IIII Courts stand between this Administration and their apparent goal of a  “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.

That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.

Other than that, I have no strong views on the subject.



“Full Frontal’s” Samantha Bee Discovers SHOCKING Truth: Obama & Trump Share Similar Views On Immigration Enforcement! — Also Introducing Late-Nite TV’s Newest Superstar, Retired USIJ Bruce Einhorn!

Check out this video link from last night’s Full Frontal With Samantha Bee” on TBS:


Yup, that’s right Sam, for years the Obama Administration has been going after foreign nationals with criminal records, even though, as illustrated by the young lady you profiled, some of them are nonviolent, have paid for their crimes, have rehabilitated themselves, and are productive, law-abiding, tax-paying members of their communities — many with U.S. citizen families — by the time ICE Enforcement shows up.

Perhaps realizing that, contrary to campaign rhetoric, President Obama has already implemented a “get tough” immigration enforcement program, Trump spokesman Kris Kobach promises to expand (by Executive Fiat, mind you) the definition of “criminal” to include foreign nationals who have merely been charged or arrested, not necessarily convicted of any crime. Hey, what’s the presumption of innocence anyway?  To paraphrase another great American thinker, “If they were’t criminals, they wouldn’t be in court.”  Perhaps the next logical step will be anyone who has ever thought of violating the law or watched a TV crime show!

I think it is safe to predict that many of those who would fall within Kobach’s ever-expanding concept of “criminal” will eventually prove not to be removable under the laws of the United States.  Even now, that’s the case in a remarkable number of prosecutions brought by the Obama Administration’s ICE (“Immigration and Customs Enforcement”).

That’s why we need a strong, independent, impartial, expert United States Immigration Court (including the “Appellate Division,” the “BIA”) to insure that fairness and constitutional Due Process are always at the forefront and that any Administration’s enforcement initiatives comply with the law. And, any Administration would find that final orders of removal achieved through such a due-process oriented court system would have great credibility (sadly, not necessarily the case now and particularly in the recent past) and would stand up to judicial review by the Federal Courts of Appeals.

Finally, my friend and former colleague Judge Einhorn has proved what I’m finding out — there is lot’s of “life” out here after retiring from the Immigration Bench, and it’s pretty much “all good.” Will SNL be the next stop for Judge Einhorn?  Stay tuned!

Go Pack Go!!!!!🏈🏈🏈



L.A.’s Already Overwhelmed Immigration Court Could Simply Collapse Under A Trump Enforcement Initiative!

“The burden on judges could also increase, as dockets swell with more cases and those on the bench come under increasing pressure to render decisions.

“I see this as a pot that is going to boil over and scald everybody,” said Bruce Einhorn, a former immigration judge in Los Angeles. “I just don’t see pragmatically how you can almost double the number of cases without spending huge amounts of money to try to accommodate the dockets of the cases already on schedule and those that will be brought into the system.”

The backlog of cases is not new. It has steadily increased over the past decade — even as fewer immigrants have been apprehended along the Southwest border in recent years. In response, the Executive Office for Immigration Review, the agency that oversees the courts, has added more judges, including one to Los Angeles in November. It’s also prioritized juvenile cases in an effort to speed up cases of migrant youth.”


The full article, at the link, contains a 9-minute audio segment. Does anyone seriously think that adding one Immigration Judge in Los Angeles or “prioritizing” juvenile cases will solve this mess?

Actually, the misguided prioritization of juvenile cases, many of them unrepresented, over longer pending cases of represented individuals is exactly the type of “Aimless Docket Reschuffling” that has created a practically insurmountable backlog in the Immigration Courts, notwithstanding a modest decline in new case receipts and a modest increase in resources.  The inability of the DOJ and EOIR to establish an efficient merit hiring system for new Immigrstion Judges and poor planning for additional courtrooms to house new judges has also aggravated the problem.





Asylum Free Zones in the U.S. Examined by Inter-American Commission — Ignites Dialogue Pro and Con

This article by Katie Shepard in Immigration Impact fueled a “spirited dialogue” among my long-time Lawrence University friend Thomas “The Mink” Felhofer, a retired Postmaster and U.S. Navy Veteran from Sturgeon Bay, WI; my former BIA colleague Hon. Lory D. Rosenberg; my former colleague, Retired U.S. Immigration Judge Bruce Einhorn, of Los Angeles, CA; and me.  For those interested, I’ve tried my best to recreate the back and forth (most of which occurred before the birth of in the “Comments” section below.  Further dialogue is always welcome!