⚖️🗽 NEED HELP NAVIGATING THE IMMIGRATION COURTS IN ATLANTA, BALTIMORE, HYATTSVILLE, OR STERLING? — The ABA Commission On Immigration Has You Covered With New Hotline!

From the ABA Commission on Immigration:

The ABA Commission on Immigration is launching a Virtual Immigration Court Helpdesk for the Atlanta, Baltimore, Hyattsville, and Sterling Immigration Courts.

 

The informational flyers are attached here. Please feel free to share with your extended networks.

ABA ICH Flyer ENG.pdf (1)

ABA ICH Flyer SPA.pdf (1)

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

What a great program! Hope it will be extended to other Immigration Courts in the future!

🇺🇸 Due Process Forever!

PWS

09-23-23

🇺🇸⚖️🗽🦸‍♀️🎖 AMERICAN HERO: REP. HILLARY SCHOLTEN (D-MI) WINS 2023 MICHAEL MAGGIO AWARD HONORING HER COMMITMENT TO JUSTICE FOR IMMIGRANTS! — Former EOIR Attorney’s Star Continues To Shine!

Hillary, Maggio Award
Hillary, Maggio Award

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

I knew Michael as a friend, colleague, litigator, and sometimes worthy opponent from his days in law school until his untimely death in 2008! Michael’s wife, Candace Kattar, was actually a law student intern in the “Legacy INS” Office of General Counsel during the “Crosland/Schmidt Era” of the Carter Administration! Together they founded the highly-respected firm Maggio & Kattar.

Knowing both Michael and Hillary, I can’t think of a more deserving recipient for this prestigious honor. Congratulations, Hillary!!!😎👏

🇺🇸 Due Process Forever!

PWS

06-17-23

🇺🇸⚖️IN MEMORIAM: Hon. David Crosland, Judge, Former Legacy INS Acting Commissioner, Civil Rights Activist, Private Practitioner, Professor, Dies At 85

IN MEMORIAM: Hon. David Crosland, Judge, Former Legacy INS Acting Commissioner & General Counsel, Civil Rights Activist, Private Practitioner, Professor, Dies At 85

David Crosland
Hon. David Crosland
American Jurist, Senior Executive, Lawyer, Teacher
1937 – 2022
PHOTO: Alabama Law

By Paul Wickham Schmidt

Courtside Exclusive

August 1, 2022

Alexandria, VA.  Along with many others, I am saddened to learn of the death, over the weekend, of my former “boss” and judicial colleague, Judge David Crosland of the Baltimore Immigration Court. He was 85.

First and foremost, David was a dedicated public servant. A graduate of Auburn University and the University of Alabama School of Law, David served in the Civil Rights Division of the US Department of Justice during the tense and dangerous days of the 1960s. That was a time when speaking out for justice for African Americans in the South could be a life-threatening proposition.

Among many difficult and meaningful assignments, he helped prosecute Klansmen in Mississippi and also was assigned to prosecutions arising out of racially motivated police and National Guard killings in Detroit in 1967-68. After leaving the DOJ, he became the Director of the Atlanta Lawyers’ Committee for Civil Rights Under Law.

At Auburn, David had studied Agriculture. He sometimes liked to regale Immigration Court interns with tales of his “days on the farm” during summers in college! 

I first met Dave in 1977, when Judge Griffin Bell appointed him to be the General Counsel of the “Legacy INS.” Shortly thereafter, David selected me to be his Deputy General Counsel, thus initiating my career as a Government manager and executive. During the second half of the Carter Administration, Dave was the Acting Commissioner of Immigration, and I was the Acting General Counsel. 

In those days, my hair was actually longer than Dave’s, a situation that would become reversed in later years as our respective careers progressed. Indeed, during his “ponytail and gold earring days” in private practice, I reminded him of the times in “GENCO” where he used to encourage me to “get a haircut.”

We went through lots of exciting times together including the Iranian Hostage Crisis, litigation involving Haitian asylum seekers, Nazi War Criminal prosecutions, the Mariel Boatlift, the creation of the Asylum Offices, and the beginnings of a major restructuring of the INS nationwide legal program that eventually brought all lawyers under the direct supervisory control of the General Counsel.

Following the 1980 election, Dave went into private practice and became a partner in Ober, Kaler, Grimes & Shriver and then Crosland, Strand, Freeman & Mayock. He rejoined Government in 1997, when Attorney General Janet Reno appointed him as an Immigration Judge in Otey Mesa, CA. He later became an Assistant Chief Immigration Judge for several courts, as well as a Temporary Member of the BIA. 

Our paths crossed again when we both served on the bench at the Arlington Immigration Court, roughly between 2009 and 2014. Then, David returned to Baltimore to be closer to his son and his residence in Maryland. He also served at various times as an Adjunct Professor of Law at GW Law and UDC Law.

David was a “character,” for sure. He had his own way of doing things that wasn’t always “strictly by the book.” But, he cared about the job and the people, was kind to the staff, and kept at it years after most of his contemporaries, including me, had retired.

One of the most moving tributes to David is from a member of court administrative staff who worked with him for years: 

We just learned that Judge Crosland passed away this weekend at the grand age of 85 years. No funeral requested by him as his last wishes. Please keep him and his family in prayer. He was an amazing man, had a brilliant career and he was a genuinely kind person, hardworking to the end. Judge Crosland was very good to me, and he would walk me to my car after the long work days that turned into nights. Always a true gentleman, he would make me his famous lemon ice box pie! God bless Judge Crosland. 

Another fine tribute to David is this piece from his alma mater, the University of Alabama School of Law, when they honored him in 2014 for their “Profile in Service:” https://www.law.ua.edu/blog/news/law-school-selects-judge-david-crosland-as-2014-profile-in-service/.

My time with Dave at the “Legacy INS” will always be with me as one of the most exciting, sometimes frustrating, but highly rewarding and formative parts of my career. Rest In Peace ☮️  my friend and colleague. You will be missed.

🇺🇸Due Process Forever.

PWS

08-01-22

🗽⚖️NDPA JOB OPPORTUNITY:  WORK FOR “THE ASYLUMIST,” JASON DZUBOW! 😎 — Dzubow & Pilcher, PLLC, in Washington, D.C. is looking for a highly qualified Immigration Associate Attorney! 

Jason Dzubow
Jason Dzubow
The Asylumist

IMMIGRATION ASSOCIATE ATTORNEY 

Dzubow & Pilcher, PLLC, a boutique law firm located in downtown Washington, DC, seeks a full-time associate attorney. Our firm practices immigration law with a focus on asylum, family-based immigration, and removal defense. Our asylum clients come from a diverse range of countries and include journalists, diplomats, sexual minorities, religious and ethnic minorities, political activists, women’s rights activists, and many others.  

Job Duties & Tasks: Represent clients and manage caseload in all areas of the firm’s immigration practice, which includes: assisting clients in affirmative and defensive asylum applications, withholding of removal and other defenses to removal, family- and asylum-based adjustment of status, VAWA, DACA, TPS, employment authorization, J-1 waivers, waivers of inadmissibility, and consular processing of immigrant visa cases. Specific tasks will include conducting client intakes, providing legal consultations, completing immigration forms and affidavits, legal research and writing, direct representation of clients before the USCIS, ICE, EOIR, and the U.S. Department of State, and supervising paralegals and interns.

Qualifications: Membership in the DC bar or a state bar is required. Spanish fluency is required.  Candidates should have a demonstrated interest in immigration law and political asylum, and experience in an immigration legal services practice environment. Preference given to candidates with experience in asylum and removal defense. Candidates should also be detail-oriented, self-starters with the ability to handle multiple priorities and complete time-sensitive assignments.  

Salary and Benefits: Salary is commensurate with experience. We also offer health benefits, vacation time, and a retirement savings plan. 

To apply: If interested, please send a cover letter, resume, and writing sample (5-10 pages) to Todd Pilcher at tpilcher@dzubowlaw.com. Please include “Associate Attorney Application” in your subject line. We are accepting applications on a rolling basis.

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Contact information is in the above position posting!  Good Luck!

For those of you who don’t know him, in addition to being a great lawyer, Jason Dzubow is the author of The Asylumist Blog:  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwj-1riog_v3AhXyIn0KHZWGB5YQFnoECAgQAQ&url=https%3A%2F%2Fwww.asylumist.com%2F&usg=AOvVaw31096PYuipIGsxJadngh9O, has written a book (How to Seek Asylum in the United States and Keep Your Sanity), and has been an Adjunct Professor of Law.

As you can see, he and his partner, Todd Pilcher, another “immigration guru” who practiced before me in Arlington, have senses of humor, an absolute requirement for practicing immigration and human rights law in today’s world!

 🇺🇸 Due Process Forever!

PWS

05-25-22

🛡⚔️ROUND TABLE SUPERHERO 👨🏻‍⚖️JUDGE (RET) JOHN GOSSART SPEAKS OUT FOR JUSTICE IN BALTIMORE SUN OP-ED!

 

Judge John F. Gossart, Jr.
Retired Judge John F. Gossart, Jr.
Member, Round Table of Former Immigration Judges
Photo Source: YouTube.com

https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0207-pbj-deportation-20210205-4td5rmdayraobpp4fejuvdxfo4-story.html

A finding of ‘probation before judgment’ should never lead to deportation | COMMENTARY

By JOHN F. GOSSART JR.

FOR THE BALTIMORE SUN |

FEB 05, 2021 AT 5:31 AM

“May God forgive you, because I cannot.”

These words were written to me in a letter while I was a United States immigration judge at the Baltimore Immigration Court, where I presided for 31 years. The letter was written by the wife of a man I had ordered deported. In so doing, I had permanently separated a father and husband from his wife and children. These words will stay with me for the rest of my life.

Michelle Jones’ husband, Daryl, was charged with a minor offense in Maryland. Like many first-time offenders and individuals charged with minor violations, he was given probation before judgment (PBJ). This meant that Daryl, a lawful permanent resident of the United States was not convicted under Maryland state law. For United States citizens, a Maryland PBJ poses no further consequences unless they violate the terms of their probation. But for non-citizens like Daryl, the legal consequences can be far more dire.

Although a PBJ is not considered a conviction under state law, it is considered a conviction under federal law and therefore triggers immigration consequences, such as detention and deportation. I have witnessed countless non-citizens be ordered deported as a result of a PBJ and the devastation to their families that follows. I myself have ordered the deportation of hundreds of Maryland residents like Daryl because of a PBJ. It didn’t matter that these individuals had been deemed worthy of a second chance and not convicted under Maryland law. Their PBJs condemned them to the gravest punishment — deportation under federal immigration law — leaving me with no judicial discretion. My hands were tied by the law.

The Maryland General Assembly has the opportunity, and the responsibility, to correct this unjust system by amending the PBJ statute. That is why I am asking the Maryland General Assembly to pass legislation (House Bill 354/Senate Bill 527) that would make probation before judgment accessible to all Maryland residents, regardless of citizenship status. The amendment would merely change the process by which a PBJ is entered; the impact of a PBJ would remain unchanged.

This bill ensures that the consequences of PBJs are the same for citizens and non-citizens alike, narrowing the disparities in our criminal justice and immigration systems, which disproportionately affect people of color. And for someone like Daryl, it would have been the difference between deportation and staying in the country to be with his family and watch his kids grow up.

. . . .

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Read the full op-ed at the link.

All of us who have served on the immigration bench have had cases like Daryl’s where the result is unjust and there is no sensible explanation for what we were forced to do.

The time for rationalizing and humanizing our immigration laws is here. As my long-time friend and colleague (we were “present at the beginning” of EOIR) John says, we must seize and act on every opportunity to make due process and equal justice under law a reality for all persons in America!

Thanks, my friend and colleague!

Historical trivia:  I made one of my rare Immigration Court appearances before Judge Gossart in a pro bono case when I was at Frogomen DC. It was an asylum case, and we won at the preheating conference! I do remember that Judge Gossart was pretty peeved at me because I refused to concede removability, asserting my client’s right to be in and remain in the U.S. as a refugee/asylee. He “ripped me” on that issue, but we won on everything else. The INS Attorney didn’t contest it, as I remember.

One of my other pro bono appearances was before my friend and Round Table colleague Judge Joan Churchill in Arlington. Won that one too — recollect it was a withholding of removal case, also resolved through pretrial agreement with the INS Attorney at the suggestion of Judge Churchill.

Didn’t get to show off my “litigation skills” in either case. Probably just as well. A “W” is a “W,” and a life saved is a life saved!

⚖️🗽🇺🇸Due Process Forever!

PWS

02-05-21

U.S. JUDGE 👨‍⚖️ 🇺🇸⚖️ THWARTS ICE 🏴‍☠️ EFFORT TO REMOVE INDONESIAN ASYLUM APPLICANT – “Siahaan’s attorneys, Elsy Ramos Velasquez and Patrick Taurel, had argued the arrest was made under false pretenses, without a warrant and in violation of ICE’s policy that typically prohibits agents from making arrests on church property.”

Meagan Flynn
Meagan Flynn
Morning Mix Reporter
WashPost
Photo From Twitter

https://www.washingtonpost.com/local/social-issues/siahaan-immigration-deportation/2020/10/03/ec7f2380-04c2-11eb-897d-3a6201d6643f_story.html

 

By

Meagan Flynn

Oct. 3, 2020 at 3:50 p.m. EDT

A federal judge in Maryland has granted an undocumented Indonesian immigrant temporary reprieve from deportation, ruling Friday evening that immigration authorities cannot remove him from the country until he has a chance to pursue religious asylum.

Binsar Siahaan, a 52-year-old father to two U.S. citizens, attracted considerable support from faith-based activists nationwide after he was arrested by U.S. Immigration and Customs Enforcement last month at his home on the grounds of Glenmont United Methodist Church in Silver Spring, Md. He and his wife, also an undocumented Indonesian immigrant, work there as church caretakers.

ICE arrested an undocumented immigrant on church grounds. They lied to coax him out, family and attorney say.

Siahaan’s attorneys, Elsy Ramos Velasquez and Patrick Taurel, had argued the arrest was made under false pretenses, without a warrant and in violation of ICE’s policy that typically prohibits agents from making arrests on church property. They also argued that Siahaan, who is Christian, should not be deported to majority-Muslim Indonesia until he has a chance to fully pursue religious asylum.

On Friday, U.S. District Judge Paul Grimm agreed, granting Siahaan a preliminary injunction that blocks ICE from removing him from the country until the Board of Immigration Appeals, or a higher federal court, makes a ruling on his pending appeal. Siahaan is being held at a detention center in Georgia, where he was transferred from Baltimore to await deportation. Grimm also ordered ICE to bring him back to Baltimore, where he will remain in custody closer to his family.

“When the ruling came down, we were really relieved,” said the Rev. Kara Scroggins, pastor at Glenmont United Methodist. “We’re glad that he’s closer to home at the detention facility in Baltimore, but we’re going to keep fighting until he’s home with his family.”

ICE could not immediately be reached for comment Saturday but previously said Siahaan was arrested “after he received full due process in the nation’s immigration courts.”

 

. . . .

 

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Read the full article at the link.

 

Hats off to the litigation team and to U.S. District Judge Paul Grimm! By ordering ICE to return Siahaan to Maryland, rather than detaining him in Georgia, generally known as one of the worst places in the “New American Gulag,” Judge Grimm took the kind of effective action necessary to stop the abusive actions of ICE and to guarantee real due process!

 

In a functioning system with an independent U.S. Immigration Court comprised of Judges with expertise in asylum and human rights laws and a commitment to due process and the rule of law, Immigration Judges could take the actions necessary to protect fundamental rights and hold ICE accountable without constant resort to the U.S. District Courts. A “captive” Immigration Court, where Immigration Judges are subservient to Billy the Bigot Barr and pressured to act as “ICE enforcement in robes” ill-serves the national interest! It’s also highly inefficient and wasteful of public resources!

 

Thanks to my good friend Deb Sanders for bringing this incident to my attention!

 

Due Process Forever!

 

 

PWS

10-05-20

⚖️👍🏼🗽DUE PROCESS VICTORY: US District Judge Requires Baltimore Immigration Court to Comply With Due Process in Bond Hearings! — Round Table Warrior Judge Denise Noonan Slavin Provides Key Evidence! — Miranda v. Barr!

Miranda v. Barr, U.S.D.C. D. MD., U.S. District Judge Catherine C. Blake, 05-29-20

Preliminary Injunction Memo

KEY QUOTES:

. . . .

A. Likelihood of success on the merits

i. Due process claim: burden of proof

The lead plaintiffs claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the government bears the burden of proving, by clear and convincing evidence, dangerousness or risk of flight. As explained above, neither the INA nor its implementing regulations speak to the burden of proof at § 1226(a) bond hearings, and the BIA has held that the burden lies with the noncitizen. See Guerra, 24 I. & N. Dec. at 37, 40. But, as the lead plaintiffs point out, when faced with challenges to the constitutionality of these hearings, district courts in the First, Second, Ninth, and Tenth Circuits have concluded that due process requires that the government bear the burden of justifying a noncitizen’s § 1226(a) detention. See, e.g., Singh v. Barr, 400 F. Supp. 3d 1005, 1017 (S.D. Cal. 2019) (“[T]he Fifth Amendment’s Due Process Clause requires the Government to bear the burden of proving . . . that continued detention is justified at a § 1226(a) bond redetermination hearing.”); Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *11 (D. Colo. July 2, 2019) (same); Darko v. Sessions, 342 F. Supp. 3d 429, 436 (S.D.N.Y. 2018) (same); Pensamiento, 315 F. Supp. 3d at 692 (same). While jurisdictions vary on the standard of proof required, compare, e.g., Darko, 342 F. Supp. 3d at 436 (clear and convincing standard) with Pensamiento, 315 F. Supp. 3d at 693 (“to the satisfaction of the IJ” standard), the “consensus view” is that due process requires that the burden lie with the government, see Darko, 342 F. Supp. 3d at 435 (collecting cases).

The defendants concede that “a growing chorus of district courts” have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings. (Opp’n at 22). But the defendants also point out that some courts to consider the issue have

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concluded otherwise. In Borbot v. Warden Hudson Cty. Corr. Facility, the Third Circuit analyzed a § 1226(a) detainee’s claim that due process entitled him to a second bond hearing where “[t]he duration of [] detention [was] the sole basis for [the] due process challenge.” 906 F.3d 274, 276 (3d Cir. 2018). The Borbot court noted that the detainee “[did] not challenge the adequacy of his initial bond hearing,” id. at 276–77, and ultimately held that it “need not decide when, if ever, the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond hearing,” id. at 280. But, in analyzing the detainee’s claims, the Borbot court stated that it “perceive[d] no problem” with requiring that § 1226(a) detainees bear the burden of proof at bond hearings. Id. at 279. Several district courts in the Third Circuit have subsequently concluded that Borbot compels a finding that due process does not require that the government bear the burden of proof at § 1226(a) bond hearings. See, e.g., Gomez v. Barr, No. 1:19-CV- 01818, 2020 WL 1504735, at *3 (M.D. Pa. Mar. 30, 2020) (collecting cases).

Based on its survey of the case law, the court is more persuaded by the reasoning of the district courts in the First, Second, Ninth, and Tenth Circuits. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690 (citation omitted). While detention pending removal is “a constitutionally valid aspect of the deportation process,” such detention must comport with due process. See Demore v. Kim, 538 U.S. 510, 523 (2003). Although the Supreme Court has not decided the proper allocation of the burden of proof in § 1226(a) bond hearings, it has held, in other civil commitment contexts, that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” See Addington v. Texas, 441 U.S. 418, 427 (1979)

16

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(addressing the standard of proof required for mental illness-based civil commitment) (emphasis added).

Application of the Mathews v. Eldridge balancing test lends further support to the lead plaintiffs’ contention that due process requires a bond hearing where the government bears the burden of proof. In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. 319, 335 (1976). While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof. (See Decl. of Former Immigration Judge Denise Noonan Slavin ¶ 6, ECF 1-8 (“On numerous occasions, pro se individuals appeared before me for custody hearings without understanding what was required to meet their burden of proof. . . . Pro se individuals were rarely prepared to present evidence at the first custody hearing[.]”))

With respect to the quantum of proof required at § 1226(a) bond hearings, the court notes that “the overwhelming majority of district courts have . . . held that, in bond hearings under § 1226(a), due process requires the government to bear the burden of justifying detention by clear and convincing evidence.” Hernandez-Lara v. Immigration & Customs Enf’t, Acting Dir., No.

17

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 18 of 29

19-CV-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) (collecting cases). As the Hernandez-Lara court reasoned, “[p]lacing the burden of proof on the government at a § 1226(a) hearing to show by clear and convincing evidence that the noncriminal alien should be detained pending completion of deportation proceedings is more faithful to Addington and other civil commitment cases,” id. at *6, “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’—deprivation of liberty—is so significant,” id. (quoting Singh v. Holder, 638 F.3d 1196, 1203–04 (9th Cir. 2011)) (further citation omitted).

Moreover, on the quantum of proof question, the court finds instructive evolving jurisprudence on challenges to prolonged detention pursuant to 8 U.S.C. § 1226(c). As noted in note 2, supra, § 1226(c) mandates detention of noncitizens deemed deportable because of their convictions for certain crimes. See Jennings, 138 S. Ct. at 846. Although § 1226(c) “does not on its face limit the length of the detention it authorizes,” id., the Supreme Court has not foreclosed the possibility that unreasonably prolonged detention under § 1226(c) violates due process, id. at 851. Indeed, many courts have held that when § 1226(c) becomes unreasonably prolonged, a detainee must be afforded a bond hearing. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018); Jarpa, 211 F. Supp. 3d at 717. Notably, courts in this district and elsewhere have ordered § 1226(c) bond hearings where the government bears the burden of justifying continued detention by clear and convincing evidence. See Duncan v. Kavanagh, — F. Supp. 3d —-, 2020 WL 619173, at *10 (D. Md. Feb. 10, 2020); Reid, 390 F. Supp. 3d at 228; Portillo, 322 F. Supp. 3d at 709–10; Jarpa, 211 F. Supp. 3d at 721. As the Jarpa court explained, “against the backdrop of well-settled jurisprudence on the quantum and burden of proof required to pass constitutional muster in civil detention

18

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 19 of 29

proceedings generally, it makes little sense to give Mr. Jarpa at this stage fewer procedural protections than those provided to” civil detainees in other contexts. See Jarpa, 211 F. Supp. 3d at 722 (citing United States v. Comstock, 627 F.3d 513 (4th Cir. 2010)).

In light of the above, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires § 1226(a) bond hearings where the government must bear the burden of proving dangerousness or risk of flight. As to the quantum of proof required at these hearings, the court is persuaded that requiring a clear and convincing standard is in line with the Supreme Court’s reasoning in Addington, as well as consistent with the bond hearings ordered in cases involving § 1226(c) detention.

ii. Due process claim: ability to pay and suitability for release on alternative conditions of release

The lead plaintiffs also claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the IJ considers the noncitizen’s ability to pay a set bond amount and her suitability for release on alternative conditions of supervision. The defendants counter that due process does not so require, and also asserts that at Mr. de la Cruz Espinoza’s bond hearing, the IJ did consider his ability to pay, (Opp’n at 26).

As an initial matter, the court considers whether the IJ at Mr. de la Cruz Espinoza’s bond hearing considered his ability to pay. According to the Complaint, there is no requirement that IJs in Baltimore Immigration Court consider an individual’s ability to pay when setting a bond amount. (Compl. ¶ 27 & n.8). The defendants assert that because Mr. de la Cruz Espinoza’s motion for bond included arguments about his financial situation, the IJ did, in fact, consider his ability to pay. (Opp’n at 26). The court is not persuaded. The fact that an argument was raised does not ipso facto mean it was considered. Neither the transcript of Mr. de la Cruz Espinoza’s bond hearing, (ECF 15-11), nor the IJ’s order of bond, (ECF 1-18), suggest that the IJ actually

19

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considered ability to pay. Accordingly, without clear evidence to the contrary, the court accepts the lead plaintiffs’ allegation that the IJ did not consider Mr. de la Cruz Espinoza’s ability to pay when setting bond.

The question remains whether due process requires that an IJ consider ability to pay and suitability for alternative conditions of release at a § 1226(a) bond hearing. As explained above, detention pending removal must comport with due process. See Demore, 538 U.S. at 523. Due process requires that detention “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” See Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Federal regulations and BIA decisional law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure the noncitizen’s appearance at future proceedings. See 8 C.F.R. §§ 1003.19, 1236.1; Guerra, 24 I. & N. Dec. at 38. But, the lead plaintiffs argue, when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances.

Several courts to consider the question have concluded that § 1226(a) detention resulting from a prohibitively high bond amount is not reasonably related to the purposes of § 1226(a). In Hernandez v. Sessions, the Ninth Circuit held that “consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, [is] necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings[.]” See 872 F.3d at 990–91. While the Hernandez court did not explicitly conclude that a bond hearing without those considerations violates due process, see id. at 991 (“due process likely requires consideration of financial circumstances and alternative conditions of release” (emphasis added)), the court in Brito did reach that conclusion, see 415 F.

20

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Supp. 3d at 267. The Brito court held that, with respect to § 1226(a) bond hearings, “due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.” Id. at 267. Relatedly, in Abdi v. Nielsen, 287 F. Supp. 3d 327 (W.D.N.Y. 2018), which involved noncitizens held in civil immigration

9

detentionpursuantto8U.S.C.§1225(b), thecourt—relyingontheNinthCircuit’sreasoningin

Hernandez—held that “an IJ must consider ability to pay and alternative conditions of release in setting bond for an individual detained under § 1225(b).” Id. at 338. To hold otherwise, the Abdi court reasoned, would implicate “the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to § 1225(b).”10

The court is persuaded by the reasoning of Hernandez, Brito, and Abdi. If an IJ does not make a finding of dangerousness or substantial risk of flight requiring detention without bond (as in Mr. de la Cruz Espinoza’s case), the only remaining purpose of § 1226(a) detention is to

11

that an individual may not be imprisoned “solely because of his lack of financial resources.” See

9 8 U.S.C. § 1225(b) authorizes indefinite, mandatory detention for certain classes of noncitizens. See Jennings, 138 S. Ct. at 842 (citing 8 U.S.C. §§ 1225(b)(1) and (b)(2)).

10 The court notes that both Hernandez and Abdi reference now-invalidated precedent in both the Ninth and Second Circuits requiring the government to provide civil immigration detainees periodic bond hearings every six months. See Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852. But Jennings, which was decided on statutory interpretation grounds, explicitly did not include a constitutional holding. See Jennings, 138 S. Ct. at 851 (“[W]e do not reach th[e] [constitutional] arguments.”). And, as the Hernandez court noted, “the Supreme Court’s review of our holding . . . that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.” 872 F.3d at 983 n.8.

11 The defendants offer no purpose for § 1226(a) detention beyond protecting the community and securing a noncitizen’s appearance at future proceedings.

The set bond amount, then, must be reasonably related to this purpose. But where a bond amount is set too high for an individual to pay, she is effectively detained without bond due to her financial circumstances. It is axiomatic

secure a noncitizen’s appearance at future proceeding.

 21

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 22 of 29

Bearden v. Georgia, 461 U.S. 660, 661–62, 665 (1983) (automatic revocation of probation for inability to pay a fine, without considering whether efforts had been made to pay the fine, violated due process and equal protection); cf. Tate v. Short, 401 U.S. 395, 398 (1971) (“The Constitution[’s equal protection clause] prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights “to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.” See Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)) (quotation marks omitted); accord ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018); see also Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976); accord Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997).

There is no suggestion that the IJs in Baltimore Immigration Court impose prohibitively high bond amounts with the intent of denying release to noncitizens who do not have the means to pay. But without consideration of a § 1226(a) detainee’s ability to pay, where a noncitizen remains detained due to her financial circumstances, the purpose of her detention—the lodestar of the due process analysis—becomes less clear. As the Ninth Circuit explained,

Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. . . . [It is a] common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose.

Hernandez, 872 F.3d at 991.

The defendants assert that an IJ need not consider a noncitizen’s ability to pay a set bond

22

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 23 of 29

amount because it had a “reasonable basis to enact a statute that grants the Executive branch discretion to set bonds to prevent individuals, whose ‘continuing presence in the country is in violation of the immigration laws,’ from failing to appear,” and that § 1226(a) passes muster under rational basis review. (Opp’n at 25–26 (quoting Reno v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 491 (1999)). But the appropriate analysis for a procedural due process challenge is the Mathews balancing test, not rational basis review, which is used to analyze equal protection claims, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981), and substantive due process claims, see, e.g., Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). And, in applying the Mathews test, the court agrees with the Ninth Circuit’s conclusion that “the government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of [] a requirement [that ICE and IJs consider financial circumstances and alternative conditions of release] are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.” See Hernandez, 872 F.3d at 993.

Accordingly, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires a § 1226(a) bond hearing where the IJ considers a noncitizen’s ability to pay a set bond amount and the noncitizen’s suitability for alternative conditions of release.

Y. . . .

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

Thanks and congratulations to Judge Denise Slavin for “making a difference.” It’s a true honor to serve with you and our other colleagues in the Round Table of Former Immigration Judges! Judge Slavin’s Declaration is cited by Judge Blake at the end of the first full paragraph above “17” in the quoted excerpt.

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Knightess
Knightess of the Round Table

To be brutally honest about it, Denise is exactly the type of scholarly, courageous, due-process-oriented Immigration Judge who in a functioning, merit-based system, focused on “using teamwork and innovation to develop best practices and guarantee fairness and due process for all” would have made an outstanding and deserving Appellate Immigration Judge on the BIA. Instead, in the totally dysfunctional “World of EOIR,” the “best and brightest” judges, like Denise, essentially are “pushed out the door” instead of being honored and given meaningful opportunities to use their exceptional skills to further the cause of justice, establish and reinforce “best judicial practices,” and serve as outstanding role models for others. What an unconscionable waste!

It’s a great decision! The bad news: Because the Immigration Courts remain improperly captive within a scofflaw, anti-immigrant, and anti-due-process DOJ, respondents in many other jurisdictions will continue to be denied the fundamentally fair bond hearings required by Constitutional Due Process.

Due Process Forever!

PWS

05-30-20

4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

http://www.ca4.uscourts.gov/opinions/181886.P.pdf

Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published

PANEL:  GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

OPINION BY:  Chief Judge Gregory

KEY QUOTE:

Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in

anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.

On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.

In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is

meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2

further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.

*******************************“

When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

By Paul Wickham Schmidt

“Courtside” Exclusive

Jan. 1, 2020

Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!

 

After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?

 

Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.

 

Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.

 

Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.

 

When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.

 

Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.

 

Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.

 

What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.

 

Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.

 

The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.

 

And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.

 

It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?

 

Due Process Forever; Complicit Courts Never!

 

PWS

01-31-20

 

START 202O OFF RIGHT WITH THESE INSPIRING STARS OF THE “NEW DUE PROCESS ARMY” – 1) Judge Lisa Dornell On CNN; 2) Judge Jeffrey Chase Blog “The Need for Transparency;” 3) Elizabeth Gibson, Esquire, “The Gibson Report 12-30-19”

 

 

Lisa Dornell, a former US immigration judge, says she could no longer serve under President Donald Trump after his administration interfered with immigration courts. #CNN #News

Category

News & Politics

 

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

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

MON, DEC 30

The Need for Transparency

A respected colleague of mine, former Immigration Judge Ilyce Shugall, generously volunteered to take time from her own schedule to travel halfway across the country to San Antonio, TX and observe

Read More

Other news:

Second Circuit holds that the deadline for filing BIA appeals “is a claim-processing rule amenable to equitable tolling:” Attipoe v. Barr

CNN reports on immigration judges quitting in response to Trump Administration policies

BIA Appellate Judges Patricia Cole, Molly Kendall Clark, and John Guendelsberger, and Immigration Judge Charles Honeyman of the Philadelphia Immigration Court are retiring.

Thank you for reading, and best wishes for a happy and healthy 2020!

500 4th Ave., Brooklyn, NY 11215, USA

Unsubscribe

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

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

 

TOP UPDATES

 

Immigration Judges In NYC Are Even Less Likely To Grant Asylum Now

Gothamist: [Contains a great chart summarizing every NYC IJ’s grant rate and changes over time]. Just four years ago, the research group TRAC found New York judges denied just 16 percent of asylum seekers. That figure has been rising since Trump took office. But the average denial rate for a New York judge shot up to 46 percent in fiscal year 2019, according to the latest data, from 32 percent in the previous year. See also Immigration judges quit in response to administration policies.

 

ICE reopening long-closed deportation cases against Dreamers

CNN: ICE has begun asking immigration courts to reopen administratively closed deportation cases against DACA recipients who continue to have no criminal record, or only a minor record. Immigration attorneys in Arizona confirmed at least 14 such cases being reopened since October, and CNN also found DACA recipients whose cases recently were reopened in Nevada and Missouri.

 

Bureaucracy as a weapon: how the Trump administration is slowing asylum cases

Guardian: Over a half-dozen immigration attorneys across the country interviewed by the Guardian describe how the US Citizenship and Immigration Services (USCIS) has returned applications unprocessed over the equivalent of failing to dot an I or cross a T – a shift with potentially life-altering consequences for their vulnerable clients.

 

Federal government deleted more immigration court records about asylum in public data release: researchers

U-T: Though the federal government promised to review a public data release of immigration court cases after researchers pointed to missing records relating to asylum, the issue has only gotten worse.

 

A Secret Report Exposes Health Care For Jailed Immigrants

Buzzfeed: BuzzFeed News has obtained a memo in which an ICE whistleblower says two immigrants got preventable surgeries and two were given the wrong drugs. Four died — one after getting “grossly negligent” care. See also House panel opens investigation into immigrant detainees’ medical care.

 

Immigration Was the No. 2 Story of 2019

AP: The drive by the Democratic-led House of Representatives to impeach President Donald Trump was the top news story of 2019, according to The Associated Press’ annual poll. Trump also figured in the second and third biggest stories of the year: the fallout over his immigration policies and the investigation by Special Counsel Robert Mueller into whether his election campaign coordinated with Russia.

 

Immigration Court “Status Docket” – the Secret Almost Alternative to Administrative Closure

LexisNexis: In 2018 the Attorney General ended the ability of immigration judges to administratively close cases, concluding they had in fact never had such authority. As shocking as that was at the time, we’re now seeing pieces of that puzzle were being laid out months before the Attorney General released that decision. And the more we learn, the more it appears the end of administrative closure was more about results (faster deportations) than about the legal principles outlined there.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Asylum Ban 2.0 Temp Stay Granted in Favor of Administration

The government requests an emergency temporary stay of the district court’s order provisionally certifying a class, and preliminarily enjoining the government from enforcing the Third Country Transit Rule, 8 C.F.R. § 208.13(c)(4), against non-Mexican nationals who were allegedly in the process of arriving at a port of entry before the Third Country Transit Rule went into effect…We grant the government’s motion for a temporary stay to preserve the status quo pending a decision on the motion for stay pending appeal.

 

Ninth Circuit Orders Review of Immigrant’s Deportation During Appeal

CNS: A Ninth Circuit panel on Friday granted an immigrant’s petition to review the federal government’s decision to deport him, saying that his removal from the country during legal proceedings did not constitute a withdrawal of his appeal.

 

USCIS Begins Accepting Green Card Applications Under Liberian Refugee Immigration Fairness

USCIS began accepting applications to adjust status to lawful permanent resident from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for FY2020, Liberian Refugee Immigration Fairness (LRIF). USCIS will accept properly filed applications until 12/20/20. AILA Doc. No. 19122690

 

RESOURCES

 

·       Think Immigration: They/Them/Ours: Discussing pronouns with clients.

·       The Collaborators in Honduras: The Girls Who Want to be MortalGang perceptions of women.

 

EVENTS

   

·       1/23/20 Debrief on Mississippi Raid: Lessons Learned and Improving Responses

 

ImmProf

 

Monday, December 30, 2019

·       Nolan Rappaport (The Hill): Removal of DACA recipients has begun: It didn’t take a crystal ball to see DACA would not end well

·       New Path to Citizenship for Liberians

·       Hispanic voters being overlooked in Democratic presidential campaign

Sunday, December 29, 2019

·       Top 10 Immigration Stories of the Decade

·       From the Bookshelves: All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It by Daniel Denvir

Saturday, December 28, 2019

·       Trump administration begin to ramp up DACA removals?

Friday, December 27, 2019

·       Congress investigating immgrant detainees’ medical care

·       Taking Private Lands for the Border

·       AP: Immigration Policy Second Biggest News Story of 2019

·       Trump administration chasing immigration judges away?

·       Immigration Judges Asylum Grants & Denials: Fiscal Years 2018-2019

Thursday, December 26, 2019

·       How U.S. Immigration Policy Changed This Year — in 10 minutes

·       In Christmas Day Message, Pope Francis Shines Light On Migrant Suffering

·       Colorado Governor Pardons Immigrant Mother Who Sought Sanctuary

Wednesday, December 25, 2019

·       Santa’s Visa Options

·       Documentary: The Faces of Family Separation

Tuesday, December 24, 2019

·       An Immigrant’s Christmas Eve

·       An Immigrant’s Christmas Eve, 1979

·       How ICE Uses Social Media to Surveil and Arrest Immigrants

Monday, December 23, 2019

·       Immigrant of the Day: Kamaru Usman

 

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

INTERESTING HISTORICAL SIDENOTE: As reported by Jeffrey in his blog, with the retirement of BIA Appellate Immigration Judges Patricia Cole and John Guendelsberger, the only remaining member of the “Schmidt Board” (1995-2001) is Judge Ed Grant. Judge Cole worked with me back in the days of the Legacy INS General Counsel’s Office, as did Judge Molly Kendall Clark who also was one of my Senior Counsel when I was BIA Chair. Judges Cole and Guendelsberger were the last of the “original” 12 members of the “Schmidt Board” invested with me by then Attorney General Janet Reno in the Fall off 1995.

Another historical note:  Judge Dornell’s late father Ed Dornell and I worked together at the Legacy INS during the Reagan Administration when he was the Director of Intelligence and I was the Deputy General Counsel/Acting General Counsel.

HAPPY NEW YEAR!🥂🍾🏈😎

DUE PROCESS FOREVER!

PWS

01-01-20

 

 

 

HOW TO RUIN A COURT SYSTEM: SOME OF THE “BEST & BRIGHTEST” IMMIGRATION JUDGES QUIT IN PROTEST OVER REGIME’S BIASED POLICIES AND “WEAPONIZATION” OF IMMIGRATION COURTS INTO DHS ENFORCEMENT TOOL BY DOJ POLITICOS!

Priscilla Alvarez
CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN

https://www.cnn.com/2019/12/27/politics/immigration-judges-resign/index.html

 

Priscilla Alverez reports for CNN:

 

Immigration judges quit in response to administration policies

 

By Priscilla Alvarez, CNN

Updated 6:39 AM ET, Fri December 27, 2019

 

Washington (CNN)Lisa Dornell loved her job. For 24 years, she sat on the bench in Baltimore’s immigration court, hearing hundreds of cases of immigrants trying to stay in the United States.

“It was an honor. It was a privilege to be able to preside over so many different cases and be able to grant relief to people who needed relief,” Dornell told CNN in an interview.

But she walked away from that job in April — a decision that still invokes a wave of emotion when she recalls it. “The toxic environment made it both harder and easier to leave,” Dornell said.

Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.

The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority.

Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. The bogged-down system has led to immigration cases being pushed out years in the future, leaving many immigrants residing in the US unsure if they’ll be allowed to stay or be ordered removed.

Immigration judges accuse Justice Department of unfair labor practices

President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, the administration has sought to hire more immigration judges. Most recently, the immigration judge corps hit a record high, though the Justice Department still has to contend with judges leaving over policy disagreements.

In a statement to CNN, the Justice Department’s Executive Office for Immigration Review spokeswoman, Kathryn Mattingly, said the agency “continually plans for attrition, and both improvements to the hiring process and a policy of ‘no dark courtrooms’ help minimize the operational impact of (immigration judge) separations and retirements.”

The agency doesn’t track individual reasons for retirements or departures, Mattingly said.

Immigration judges — employees of the Justice Department — are charged with following the policies set by each administration.

“The nature of the job ebbed and flowed as administrations changed,” Dornell recalled. “It was always tolerable. We all work with a realization that it’s the prerogative of the administration to implement policies as they see fit.”

The Trump administration was no exception. Trump’s first attorney general, Jeff Sessions, implemented a series of changes to the immigration court system that have continued under his successor, William Barr.

The Justice Department has imposed case quotas, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges’ ability to exercise discretion in some cases and moved to decertify the union of immigration judges.

Over time, those actions prompted immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department despite initial plans to stay longer.

“I felt then and I feel now that this administration is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general,” said Ilyce Shugall, who served as an immigration judge in San Francisco from 2017 until March of this year. “And I just couldn’t be a part of that.”

‘It started to wear on me’

Over his nearly two-year tenure as attorney general, Sessions transformed the courts by flexing his authority to overrule decisions, hire more immigration judges and set a case quota for judges.

One of Sessions’ addresses to the workforce, in particular, resonated with judges. In a June 2018 speech in Washington, Sessions denounced the system, which he believed was encouraging migrants to make baseless asylum claims, and reminded judges of their role in cracking down on those claims.

“You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly and consistently,” Sessions said. Later that day, he issued a ruling that removed asylum protections for victims of domestic violence and gang violence.

“To be honest with you, in that meeting room, there were a number of judges that cheered and clapped when he announced it,” said former immigration judge Rebecca Jamil, referring to the ruling that would follow his address. “It was grotesque to me.”

Jamil, who had been based in the San Francisco immigration court, had a docket that included migrants who had fled their home countries, claiming they were victims of domestic violence. Sessions’ decision took direct aim at those cases.

Another judge in attendance at Sessions’ speech, Denise Slavin, recalled jaws dropping. Slavin had become a judge in 1995, serving in Florida before finishing her tenure in Baltimore in April of this year.

Sessions’ address and follow-up ruling was among a series of policy changes that began to wear on judges.

“When you’ve been around that many administrations, you learn to adapt. You see a lot of different things. Nothing like this,” said James Fujimoto, a former Chicago immigration judge who started on the bench in 1990 and also retired in April.

In particular, the administration began rolling out changes that dictated the way judges were expected to proceed with cases, thereby tightening control of the immigration courts. For example, the Justice Department said it would evaluate immigration judges on how many cases they close and how fast they hear cases.

Earlier this year, the Justice Department also issued a new rule that gives more power to the director of the Executive Office for Immigration Review. It allows the Justice Department-appointed director — currently James McHenry — to step in and issue a ruling if appeals are not completed within a certain time frame.

“It started to wear at me,” said Jennie Giambastiani, a former Chicago immigration judge who joined the bench in 2002 and left this year. “The great number of cases coming in and the way it was expected we handle them.”

Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told CNN that for the majority of people leaving their roles it’s a result of the “hostility and insulting working conditions.”

Tabaddor noted that there’s been a pattern of new judges either leaving to return to their old jobs or taking other jobs within the government.

“This is not what they signed up for,” Tabaddor said, referring to policies designed to dictate how judges should handle their dockets.

Judges who have since left the department expressed similar concern over those policies. Dornell called the situation “intolerable.”

Shugall recalled the challenges she had faced in trying to move forward with cases in a way she thought was appropriate. “I felt like as more and more policies were coming down, it was making it harder and harder to effectively hear cases in the way that I felt was appropriate and in compliance with the statute regulations and Constitution,” Shugall said.

At an event earlier this year, McHenry rejected criticism that judges are vulnerable to pressures from the attorney general.

“Most judges that we’re familiar with, and I don’t think that immigration judges are any exception, when they’re on the bench, they know what their role is as a judge,” he said. “We’ve had no allegations of anyone reaching down to specific judges telling them, ‘You have to rule this way; you have to rule that way.’ ”

 

Justice Department hires new judges

Earlier this month, the Justice Department announced 28 new immigration judges, bringing the number of such judges to more than 465, a record high. The majority come from government backgrounds.

It’s not unusual for administrations to hire people who’ve worked in government, but under the Trump administration, Booz Allen Hamilton, at the direction of the Justice Department’s Executive Office for Immigration Review, issued a report recommending that the agency diversify the experience of immigration judges.

The Justice Department’s hiring practices have been criticized by House Democrats, who say whistleblowers have previously raised concerns about political discrimination in the hiring of immigration judges. The department has denied that political ideology has been a factor.

The direction of the nation’s immigration courts is also a source of concern among immigrant advocate groups. This month, groups filed a wide-ranging lawsuit, alleging that the Trump administration has manipulated the immigration court system to serve an “anti immigrant agenda.”

It remains to be seen what changes, if any, are in store for the court system, but some of those who have already left their posts as judges carry guilt for departing, concerned about who may fill their jobs.

“The biggest thing I contended with is who is going to replace me,” Jamil said. “I knew I was a fair judge.”

 

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

I’m proud to say that all of the quoted former Immigration Judges are members of our Round Table of Former Immigration Judges, committed to preserving and advancing Due Process and judicial independence.

 

Apparently, EOIR headquarters and DOJ bureaucrats now refer to Immigration Judge decisions as “policy decisions,” thereby dropping any pretense that they are fair and impartial quasi-judicial adjudications under the law.

 

As for the ludicrous claim that this is anything approaching a legitimate independent judiciary, as one of my Round Table colleagues succinctly put it: “The political arm of DOJ’s assertion that IJs are treated independently is so much BS.”

 

Yup! Congratulations and many thanks to Judge Dornell and the others who spoke out in this article!

So, Immigration Judges, who lack the life tenure and protections of independence given to Article III Judges, put their careers and livelihoods on the line for Due Process and the rule of law, and, frankly, to save vulnerable lives that deserve saving. Meanwhile, the majority of Supreme Court Justices and far too many Article III Courts of Appeals Judges just bury their judicial heads in the sand and pretend like the outrages against Due Process, fundamental fairness, and the rule of law aren’t really happening in Immigration Court and that human lives aren’t being ruined or lost by their derelictions of duty. Has to make you wonder about their ethics, courage, and commitment to their oaths of office, as well as what the purpose of life tenure is if all it produces is complicity in the face of tyranny that threatens to destroy our Constitution and bring down our republic.

The Article IIIs are providing some rather sad examples and bad role models for today’s aspiring lawyers.

PWS

12-27-19

 

IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control

Julia Preston
Julia Preston
American Journalist
The Marshall Project

Julia Preston reports for The Marshall Project:

By JULIA PRESTON

A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.

Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.

“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.

In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.

The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.

Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.

Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.

The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.

But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.

The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”

The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.

Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.

Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.

In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.

What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.

To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.

“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.

“If judges get into that red, they can lose their job,” Slavin said.

pastedGraphic.png

Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.

Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.

The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.

Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.

Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.

The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”

Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.

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Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!

Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!

Also, the 975,298 “docketed” cases in the backlog (according to TRAC, as of 07-31-19) DOES NOT include most of the approximately 330,000 “Administratively Closed” cases that Sessions and Barr have idiotically tried to “force” back on the already-backlogged dockets. This week, the Fourth Circuit “called out” this illegal nonsense by emphatically rejecting Sessions’s scofflaw ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). This development was reported in “Courtside” yesterday. https://immigrationcourtside.com/2019/08/29/gonzo-apocalyopto-slammed-unanimous-panel-of-4th-cir-rejects-matter-of-casto-tum-exposes-irrationality-of-biased-unqualified-restrictionist-former-ag/.

Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.

It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.

Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.

PWS

08-30-19

HAVING HER SAY: Recently Retired Judge Denise Slavin, Former President Of The NAIJ & Member Of “The Roundtable” Speaks Out To “The Asylumist,” Jason Dzubow, About Her Extraordinary Career Serving Due Process & American Justice! — “The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it.”

http://www.asylumist.com/2019/05/22/judge-denise-slavin-on-the-immigration-courts-the-national-association-of-immigration-judges-article-i-and-the-leadership-at-eoir/

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel

Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).

Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?

Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.

I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.

Judge Denise Slavin

I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.

I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.

I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.

Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?

Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.

As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.

I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.

Asylumist: What about lawyers who are bad actors, and who violate the rules?

Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.

Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?

Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.

As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.

Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.

Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?

Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.

As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.

Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?

Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.

Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.

The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.

In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.

Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.

Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?

Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.

As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.

Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.

The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.

These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.

Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.

The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.

Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.

Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?

Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.

The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.

Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.

Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.

Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.

The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.

Asylumist: How would it help if Immigration Courts became Article I courts?

Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.

There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.

If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.

Asylumist: Thank you for talking to me today.

Judge Slavin: Thank you

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We’ll said, Denise, my long-time friend and colleague!

As long as there is a DOJ and EOIR is part of it, there will be “Aimless Docket Reshuffling” and “Extreme Mission Failure” meaning that “guaranteeing fairness and Due Process for all” will be unachievable.

PWS

05-25-199

GW CLINIC REPORT: Justice Finally Triumphs — 7-Year Battle On Behalf Of Abused Refugee Woman Succeeds!

Paulina Vera, Esq.; Professor Alberto Benitez; Rachel Petterson

Friends,
Please join me in congratulating S-P-G-G, from El Salvador, whose asylum application was granted by IJ David Crosland on February 26.  We received the decision today.  When told of the grant, S-P-G-G screamed.  She can start the process of bringing her minor son to the USA.  Please also join me in congratulating Rachael Petterson, Julia Navarro, Solangel González, Chen Liang, Xinyuan Li, Abril Costanza Lara, Allison Mateo, and Paulina Vera, who worked on this case.
The IJ found that S-P-G-G warranted humanitarian asylum because she established compelling reasons arising from the severity of her persecution.  Among other things, she had been raped by her sister’s ex-boyfriend, which resulted in her becoming pregnant, and giving the child up for adoption.  S-P-G-G testified that she experiences recurring nightmares, suicidal feelings, a sense of hopelessness, and fear as a result of her persecution.
FYI.  The client’s initial hearing was on December 18, 2012, IJ Crosland denied asylum, she appealed to the Board of Immigration Appeals (BIA), which remanded to the IJ, he denied asylum again, she appealed to the BIA, which denied asylum, she appealed to the 4th Circuit Court of Appeals, which remanded to the IJ, and he finally granted asylum on February 26.
**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
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Congrats to SPGG and her wonderful team at the GW Immigration Clinic! More than six years of litigation, two wrongful denials, two appeals to the BIA, one incorrect BIA decision, and a remand from the Fourth Circuit before justice was finally done.
Illustrates four things:
  • The absolute BS of those like Sessions and other restrictionists who say asylum cases can be raced through the system on an assembly line;
  • The further BS of claiming that asylum applicants and their lawyers are “gaming” the system when many delays, like this, are caused by poor anti-asylum decision-making within EOIR combined with the DOJ’s incompetent administration of the Immigration Courts;
  • The importance of full appellate rights, including review by a U.S. Court of Appeals that is actually an independent, fair, and impartial court, not a Government agency masquering as a court;
  • The absurdity of claiming that unrepresented asylum seekers can receive anything approaching Due Process in the EOIR system, particularly when they are held in inherently coercive “civil immigration detention.”

What if we had a fair, expert Immigration Court system that made every effort to do right by asylum seekers in the first instance by interpreting and applying the law in the generous and humanitarian manner to protect those in need as originally intended in the Refugee Act of 1980 and described by the Supremes in Cardoza-Fonseca?

What if we had a Government that cared about Due Process and worked to promote it rather than attempting to whack it out of shape to screw the most vulnerable among us at every opportunity?

What if the emphasis in the Immigration Courts was on fairness, scholarship, respect, and teamwork with all concerned (not just “partnership” with the prosecutor and politicized Administration goals) rather than on “haste makes waste” methods and gimmicks.

Hey, we could have a working court system where justice was served and more things got done right in the first place, instead of the disgraceful mess that EOIR has become under DOJ’s highly politicized mismanagement!

PWS

03-07-19

A LIFE WELL LIVED: R.I.P. JUDGE PATRICIA WALD 1928 – 2019 — “The truth is that life does change and the law must adapt to that inevitability.” — Rev. Bob Jones Once Called Her An “instrument of the devil.” — Can It Get Any Better Than That?

https://www.washingtonpost.com/local/obituaries/patricia-wald-pathbreaking-federal-judge-who-became-chief-of-dc-circuit-dies-at-90/2019/01/12/6ab03904-1688-11e9-803c-4ef28312c8b9_story.html

Patricia Wald, pathbreaking federal judge who became chief of D.C. Circuit, dies at 90


President Barack Obama awards Judge Patricia Wald the Presidential Medal of Freedom in 2013. (Evan Vucci/AP)

January 12 at 12:10 PM

Shortly before she graduated from Yale Law School in 1951, Patricia Wald secured a job interview with a white-shoe firm in Manhattan. The hiring partner was impressed with her credentials — she was one of two women on the law review — but lamented her timing.

“It’s really a shame,” she recalled the man saying. “If only you could have been here last week.” A woman had been hired then, she was told, and it would be a long time before the firm considered bringing another on board.

Gradually, working nights and weekends while raising five children, she built a career in Washington as an authority on bail reform and family law. Working for a pro bono legal services group and an early public-interest law firm, she won cases that broadened protections for society’s most vulnerable, including indigent women and children with special needs.

She became an assistant attorney general under President Jimmy Carter, who in 1979 appointed her to the U.S. Court of Appeals for the District of Columbia Circuit — often described as the country’s most important bench after the U.S. Supreme Court. She was the first woman to serve on the D.C. Circuit and was its chief judge from 1986 to 1991. Later, she was a member of the United Nations tribunal on war crimes and genocide in the former Yugoslavia.

Judge Wald, whom Barack Obama called “one of the most respected appellate judges of her generation” when he awarded her the Presidential Medal of Freedom in 2013, died Jan. 12 at her home in Washington. She was 90.

The cause was pancreatic cancer, said a son, Douglas Wald.


Judge Patricia Wald in 1999. (Michael Williamson/The Washington Post)
More than 800 opinions

On the D.C. Circuit, Judge Wald served on three-member panels that decided some of the most complicated legal disputes on the federal docket. She wrote more than 800 opinions during her tenure — many on technical matters involving separation of powers, administrative law and the environment — and she counted herself among the more liberal jurists, viewing the law as a tool to achieve social progress.

At the time, demonstrators regularly gathered outside the South African Embassy to shame the apartheid regime and outside the Nicaraguan and Soviet embassies to call attention to human rights violations. (The case was brought by conservative activists protesting Nicaragua’s radical left-wing Sandinista regime and the treatment of Soviet dissident Andrei Sakharov.)

Writing for the majority, Judge Robert H. Bork cited the obligation of the United States to uphold the “dignity” of foreign governments. Judge Wald responded that the ruling “gouges out an enormously important category of political speech from First Amendment protection.”

Judge Wald played a small role in a long-running, high-profile case involving the Justice Department’s effort to break up the software giant Microsoft on the grounds of anti-competitive practices.

She dissented in 1998, when the court ruled that the company had not violated a consent decree regarding Microsoft’s bundling of its Internet browser with its Windows 95 operating system. She concurred with the government’s argument that bundling gave the software company’s browser an unfair advantage and could be financially harmful to competitors. (Microsoft and the Justice Department reached a settlement in 2002.)

In 1997, she delivered a unanimous opinion in a case growing out of a corruption probe involving Mike Espy, who served as agriculture secretary under President Bill Clinton and was accused of accepting illegal gifts. In her opinion, one of the most cited executive-privilege cases since the Watergate era, Judge Wald broadened the scope of executive privilege to include the president’s senior advisers while noting that it was “not absolute” and could not be claimed in all circumstances.

In a speech at Yale in 1988, she likened judges on the appeals court to “monks or conjugal partners locked into a compulsory and often uneasy collegiality. . . . I constantly watch my colleagues in an effort to discern what it takes to be a good appellate judge: alertness, sensitivity to the needs of the system and one’s colleagues, raw energy, unselfishness, a healthy sense of history, some humility, a lively interest in the world outside the courthouse and what makes it tick.”

Summer jobs at the factory

Patricia Ann McGowan was born in the factory town of Torrington, Conn., on Sept. 16, 1928. She was 2 when her father, whom she called an alcoholic, abandoned the family. Her mother raised her with the help of relatives. They all worked at Torrington Co., which produced sewing and surgical needles and, during World War II, ball bearings.

She remembered working summers, as a teenager, at the factory, “up to my arms in ball-bearing grease.” The drudgery and her encounters with union activists sparked her interest in labor law.

In 1952, she married a Yale classmate, Robert L. Wald. After a stint clerking for a federal judge and working as an associate in a Washington law firm, she shifted her attention to her family for the next decade.

She did legal research projects on the side, collaborating with Daniel J. Freed, a Yale classmate and Justice Department lawyer, on “Bail in the United States — 1964,” a book credited with spurring the Bail Reform Act of 1966. That landmark legislation upended the bail system, which had left poor defendants little choice but to languish in jail before trial, by allowing defendants to be released without bond in certain noncapital cases. (The act was later watered down by preventive-detention laws.)

Judge Wald led a team that successfully argued in 1970 before the D.C. Circuit federal appeals court that the financial barrier was effectively an unconstitutional denial of access to the courts.

Judge Wald’s subsequent work for the Center for Law and Social Policy, a public-interest law firm, led to one of the first court decisions requiring that school districts provide an adequate education to the mentally and physically disabled.

Sen. Gordon J. Humphrey (R-N.H.), citing an article she had written on the legal rights of children to seek without parental approval medical and psychiatric attention in extreme cases, accused her of being “anti-family.” Appearing before the Senate Judiciary Committee, Bob Jones III, a fundamentalist preacher and president of Bob Jones University in South Carolina, called her an “instrument of the devil.”

Judge Wald liked to recall that a reporter approached her son Thomas, then in high school, for his reaction to his mother being called a minion of Lucifer. “Well, she burns the lamb chops,” Thomas replied, “but otherwise she’s okay.”

Her husband, who became a prominent Washington antitrust lawyer in private practice, died in 2010. Survivors include their children, Sarah Wald of Belmont, Mass., Douglas Wald of Bethesda, Md., Johanna Wald of Dedham, Mass., Frederica Wald of New York and Thomas Wald of Denver; 10 grandchildren; and one great-grandson.

Judge Wald was a former vice president of the American Law Institute, an organization of legal professionals. After the collapse of the Soviet Union, she participated in American Bar Association efforts to assist structural changes to the legal systems of former communist nations in Eastern Europe.

In 1999, U.N. Secretary General Kofi Annan named her one of 14 judges, from as many countries, to serve on the war crimes tribunal for the former Yugoslavia at The Hague.

She sat for two years on the now-defunct criminal court and was on the panel of judges that in 2001 convicted former Bosnian Serb general Radislav Krstic, the first person found guilty of genocide by the tribunal. The tribunal sentenced Krstic to 46 years in prison for his role in the slaughter of thousands of Muslim men and boys near Srebrenica in 1995. An appeals court later reduced the sentence to 35 years.

Judge Wald brought what the New York Times called a refreshing lack of pomp to the tribunal, often running down documents herself, instead of dispatching clerks to fetch them, leaving her office door open for visitors and taking her meals in a canteen where judges were seldom spotted.

She sat on many blue-ribbon panels and commissions. But she said she took particular pride in her role in an appellate decision involving a Naval Academy honor student, Joseph Steffan, who had been expelled because he was openly gay.

Judge Wald was part of the three-judge panel that unanimously ruled in 1993 that the armed forces could not make sexual orientation the sole criterion for expulsion. The Justice Department then asked for a rehearing by the full D.C. Circuit court, which in a 7-to-3 ruling — with Judge Wald dissenting — rejected Steffan’s readmission.

“You always have a sad feeling when you write a dissent because it means you lost,” Judge Wald said in an interview with a D.C. Bar publication. “But you write them because you have faith that maybe they will play out at some time in the future, and because of the integrity you owe to yourself. There are times when you need to stand up and say, ‘I can’t be associated with this point of view.’ That was certainly the way I felt in the gay midshipman case.”

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I knew Judge Wald back in the Carter Administration when she was the Assistant Attorney General for Legislative Affairs at the DOJ and I was the Deputy General Counsel of the “Legacy INS.” I was working for then General Counsel David Crosland, now Judge Crosland of the Baltimore Immigration Court. Part of my “portfolio” was the INS Legislative Program. Judge Wald’s “right hand man” on immigration legislation was my friend the late Jack Perkins who later went on to a distinguished career as a Senior Executive at EOIR.
I remember Judge Wald as wise, courteous, congenial, humane, practical, and supportive.  She was also a long-time friend of the late former EOIR Director Kevin D. Rooney who was then the Assistant Attorney General for Administration.
My favorite Judge Wald quote from this obit was the last one:
“You always have a sad feeling when you write a dissent because it means you lost,” Judge Wald said in an interview with a D.C. Bar publication. “But you write them because you have faith that maybe they will play out at some time in the future, and because of the integrity you owe to yourself. There are times when you need to stand up and say, ‘I can’t be associated with this point of view.’ That was certainly the way I felt in the gay midshipman case.”
Yup, I can certainly relate to that.
R.I.P. Judge Wald.
PWS
01-13-19

JUDICIAL CATASTROPHE: By Any Sane Standard, The U.S. Immigration Court In Baltimore Is A Total Administrative Disaster – But, That Hasn’t Stopped White Nationalist AG Jeff Sessions From Demanding That The Already Overworked & Demoralized Judges Forget About Fundamental Fairness & “Just Pedal Faster!” — “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise,” Says Retired Judge John Gossart, Jr.!

https://news.vice.com/en_us/article/xw94ea/leaked-report-shows-the-utter-dysfunction-of-baltimores-immigration-court

Ani Ucar reports for Vice News in an article featuring quotes from “Our Gang” members retired U.S. Immigration Judges Jeffrey Chase and John Gossart, as well as current (soon to be retired, perhaps?) Judge Denise Slavin:

By Ani Ucar Oct 3, 2018

Overwhelmed immigration courts are a national problem, and the growing backlog means an average immigration case is waiting in court for a record 717 days, as of 2018, according to Syracuse University.

But Maryland, with its more than 34,000 pending cases, has the fastest-growing backlog, largely because its sole immigration court, the Baltimore Immigration Court, is one of the most beleaguered and understaffed in the country, according to a confidential Department of Justice review obtained by VICE News.

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VICE News first obtained a heavily redacted version of the report through a records request but later obtained an uncensored version of the review, which paints a portrait of dysfunction at one of the busiest immigration courts in the country.

Completed in 2018 and covering the years 2014 to 2017, the review shows a department so understaffed that basic functions such as address changes or orders to appear in court were not processed or sent out as caseloads piled up. Failing to process key documents could deny migrants the opportunity to be heard in court. “Poor management of this core process leads to additional work for the Court and can result in respondents being ordered removed in absentia through no fault of their own,” the report says.

Read: Being a kid is a “negative factor” under Trump’s new immigration rule

As the court’s caseload mounted, the number of sitting judges stayed the same, fluctuating between four and five. As a point of reference, Chicago’s immigration court, which has a comparable caseload, has twice the number of sitting judges.

NO HABLA ESPAÑOL

The court’s office had no Spanish speakers on staff, even though 84 percent of its cases involved a respondent who only spoke Spanish. The equipment in the office was dated and often nonfunctional. “The two existing HP copiers in the Baltimore Court have had numerous issues and there have been literally days when the Court is unable to use either copier,” the report said.

A lack of administrative staff meant boxes with thousands of documents were left sitting on the floor or on top of file cabinets, and the report describes “hallway space filled with files, file carts, printers and the like.”

One judge currently on the court told VICE News that as cases and administrative work piles up, the court may not be able to provide due process.

“I’m happy to be retirement-eligible, and quite frankly a lot of us are,” said Baltimore Immigration Judge Denise N. Slavin, who spoke to VICE News in her capacity as president emeritus of the National Association of Immigration Judges. “I feel like if I get pushed to a point to violate due process, or I’m being disciplined for not doing something that I thought would violate due process, I would be able to leave.”

Read: This toddler got sick in ICE detention. Two months later she was dead

As bad as it’s been in the Baltimore Immigration Court, it’s about to get worse. On Monday, a new policy backed by Attorney General Jeff Sessions went into effect mandating that the nation’s roughly 330 immigration judges process at least 700 cases per year. The Department of Justice has said it will hire 100new immigration judges this calendar year to help with the backlog, but current and former immigration judges say more judges without commensurate support staff will only add to the problem.

The confidential report on the Baltimore Immigration Office was performed by a court administrator at the request of the Office of the Chief Immigration Judge, a branch of the DOJ. Unlike state or federal courts, immigration courts are part of the Department of Justice, and therefore part of the executive branch of government.

SURGING CASES

The review took place in November and December of last year, and focused on the time period from 2014-2017, when the Baltimore Immigration Court caseload nearly quadrupled.

Though the caseload was rising during that period, the court was shedding staff: They lost seven full-time permanent employees. “The shortage of staff in the Baltimore Court was so severe the Court did not have enough employees to manage the Court’s core processes,” the report says.

The report coincides with a 2014 surge of crossings at the U.S.-Mexico border. Baltimore’s caseload began to grow rapidly afterward. Despite having completed 33.11 percent more cases from 2015 to 2016 combined, the court’s efforts were not enough to keep pace with the mounting backlog. At the end of 2014, the court had 8,331 pending cases, and by December 2017 the pending caseload jumped to 29,184, according to the Transactional Records Access Clearinghouse database, or TRAC, at Syracuse University.

“It feels like you are being buried alive”

Backlogs in the immigration courts have historically been impacted by shifting migration patterns, immigration policy changes, and hiring freezes on judges and staff. But since President Trump took office in 2017, the number of pending cases in immigration courts has increased 41 percent, bringing the total to 764,561 as of August 31, 2018, according to TRAC.

“It feels like you are being buried alive,” said Los Angeles Immigration Judge Ashley Tabaddor, speaking as president of the National Association of Immigration Judges. “It’s like this tsunami of cases that just never goes away, and instead of [us] being helped, the department is just adding more pressure.”

QUOTA SYSTEM

Sessions has said the quota system will help cut down the record-high backlog, but immigration judges, both current and retired, have pushed back, saying the standard would threaten due process and judicial independence.

“There’s an overabundance of attention on efficiency and there seems to be little to no concern from higher-ups on getting the decisions right,” said retired New York City Immigration Judge Jeffrey S. Chase.

Read: Jeff Sessions wants to remove immigration judges who aren’t deporting people fast enough

Baltimore’s immigration court is relatively small, but it has been operating with a caseload similar to that of a large immigration court. While more populous states have a number of immigration courts—there are seven courts in California, for instance, and six in New York—the Baltimore facility is the only one in Maryland.

The report describes at length how staff failed to maintain order as paperwork grew. “As of early December 2017, there were approximately 700-1,000 additional filings sitting in the Court that are made up of EOIR-28s, EOIR-33s, returned notices, general correspondence and motions that have not been processed,” the report says. (An EOIR-28 is a notice of appearance in court. An EOIR-33 is a change-of-address form.)

“How the Baltimore court manages motions still needs improvement. Poor management of this core responsibility leads to additional work for the Court, and it sends the message to the private bar and to DHS that the Court is not organized and cannot be relied on,” the report said.

The Department of Justice declined to comment on the report.

At the time of the review, the Baltimore court had 24,142 pending cases in which the respondent spoke Spanish but no Spanish-speakers on staff. At one point, the staff resorted to pulling two judges off the bench to help the front desk with translation needs, said one EOIR employee.

Other times they had to enlist the help of someone in the waiting room to interpret for people. “Sometimes they were not getting the best information or even accurate information about their case,” said the EOIR employee.

“Recruitment of a Spanish Interpreter should be a priority,” the report says, but that position has yet to be filled.

All these issues are expected to worsen with the rollout of the quota system. “We’ll have preliminary success with getting a large number of cases out and temporarily reduce the backlog, but ultimately a large number of those cases will come back on appeal, thus making the backlog even worse,” Slavin said.

At the end of the day, the taxpayer will be on the hook for the cost of the immigration policy, said retired Baltimore immigration judge F. Gossart Jr. “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise.”

****************************************************
Wow! An Attorney General who consistently shows bias and maliciousness combined with incompetence. What a horrible combination! And throw into the mix a complete abdication of oversight functions by the GOP-controlled Congress.
Sessions is pouring taxpayer money down the drain in an effort to actually make the system more dysfunctional and less fair. It’s the type of fraudulent, wasteful, and abusive conduct that in normal times might result in criminal prosecutions and jail sentences. We also know that he is promoting similar dysfunction in the criminal justice system with his inane and ineffective “zero tolerance” policy that has also made him the nation’s most notorious un-prosecuted child abuser. Yet, Sessions walks free, while the victims of his misconduct, many vulnerable children and women merely seeking the justice to which they are entitled, rot in his “New American Gulag” and/or suffer grossly substandard “justice” in a totally out of control charade of a “court system” where Due Process is mocked every day.
When the only thing that keeps you going is the knowledge that you can retire any day, you know that your job is really screwed up! (Hint to the un-retired but eligible: The very best time to retire is before you get to the foregoing point.)
If this isn’t your vision of America, then take Willie Nelson’s advice and “Vote ‘Em Out.”
PWS
10-04-18