😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.” 

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.” 

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987). 

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades. 

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court. 

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table. 

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords. 

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

Knightess
Knightess of the Round Table

EXPOSING THE KAKISTOCRACY 🏴‍☠️ — LATEST TRAC “DATA DIVE” SHOWS WHY THERE ARE LIES, DAMN LIES, & EOIR’S “CRIMES AGAINST HUMANITY” ☠️🤮👎 – The Round Table & Other Immigration Experts, As Well As Some Article III Judges, Have Been Saying It Ever Since “Gonzo” Sessions’s Unethical & Dishonest Opinion In Castro-Tum: “TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. [T]he EOIR significantly misrepresented the data it used to justify this rule.”

 

 

Transactional Records Access Clearinghouse

The Life and Death of Administrative Closure 

FOR IMMEDIATE RELEASE

In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.

TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.

Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.

Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.

Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.

Read the full report at:

https://trac.syr.edu/immigration/reports/623/

TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:

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

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

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

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

 

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“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.

 

Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.

 

Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”

 

Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure. Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”

 

What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!

Due Process Forever!

 

PWS

09-10-20

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

Here’s an Addendum from Margaret Stock:

From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM]
Sent: Saturday, September 12, 2020 10:17 AM
To: Benson, Lenni B.
Cc: Immprof (immprof@lists.ucla.edu)
Subject: Re: [immprof] FW: The Life and Death of Administrative Closure

The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.

Sent from my iPhone

 

 

 

GONZO’S WORLD: SESSIONS APPEARS READY TO ELIMINATE OR SEVERELY RESTRICT AUTHORITY OF EOIR JUDGES TO “ADMINISTRATIVELY CLOSE” CASES!

For some time now, immigrant advocates have been fearing/expecting Attorney General Jeff Sessions to use his authority to “certify” BIA cases to himself as a means to undo or restrict BIA administrative precedents that might be helpful or favorable to migrants.

For those new to the practice, the U.S. immigration Court, including both the trial courts and the Appellate Division (“BIA”), is a “wholly owed subsidiary” of the Attorney General and the U.S. Department of Justice. The Attorney General gets to select U.S. Immigration Judges and BIA Appellate Judges, and they basically serve in their judicial positions at his pleasure (although, for the most part, they can’t be removed from their positions as DOJ Attorneys without cause — in other words, they can  be reassigned to non-judicial duties at the same pay and grade largely “at will”).

Additionally, the Attorney General has the authority to promulgate regulations governing the jurisdiction and authority of the Immigration Courts and the BIA. Beyond that, he can actually change the result in individual cases with which he disagrees by a regulatory device known as “certifying” cases to himself for final decision. This process, of course, also applies to BIA precedents, which otherwise are binding on U.S. Immigration Judges nationwide.

The process of certification has now begun. Today, Sessions “certified” a BIA case to himself for the apparent purpose of stripping or limiting the authority of the BIA and Immigration Judges to “administratively close” cases. “Administrative closure” is a method of removing the case from the court’s active docket (significantly, it then no longer counts toward the “backlog” of pending cases).

It is normally used for cases that are pending for adjudication somewhere within the USCIS. It had also been widely used, particularly during the Obama Administration, as a means of implementing decisions by the ICE Chief Counsel to exercise “prosecutorial discretion” or “PD” in particular humanitarian situations, as well as a way for removing so-called “DACA” grants from the courts’ active dockets.

The particular case certified is Matter of Castro-Tum, 27 I&N Dec. 87 (A.G. 2018). The BIA’s decision is unpublished (“non-precedcential”). However, Session’s real target appears to be the BIA’s precedents Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), which gave Immigration Judges at least some independent authority to administratively close cases over the objection of a party (although, importantly, not the authority to close a case for “PD” without ICE Counsel’s consent). While Matter of Castro-Tum asks for briefing on a number of questions, it seems highly unlikely that Sessions went to the trouble of certifying the case to reaffirm, continue, or expand the use of “administrative closing.”

“Administrative closing” was initiated by the first EOIR Chief immigration Judge, the late William R. Robie, as a way of clearing court dockets of cases that were not actually under active consideration before the Immigration Court. It has been an effective way or reducing and prioritizing immigration Court dockets that has presented few problems in administration. Its elimination or restriction could lead to more “Aimless Docket Reshuffling” (“ADR”) or bigger backlogs.

Some advocates have even suggested that Sessions actually intends to maximize the Immigration Court’s already huge 660,000 case backlog to support a request for 1) a dramatic immediate increase in immigration Judge funding, or 2) a dramatic expansion of the number of individuals subject to so-called “Administrative (or “Expedited”) Removal” by DHS Enforcement officers without recourse to the immigration Court, or both.

Stay tuned to see which BIA precedents might be next on Session’s “chopping block.”

Here’s a copy of Matter of Castro-Tum:

https://www.justice.gov/eoir/page/file/1022366/download

Cite as 27 I&N Dec. 187 (A.G. 2018) Interim Decision #3911

Matter of Reynaldo CASTRO-TUM, Respondent

Decided by Attorney General January 4, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?

2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?

3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?

4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?

187

Cite as 27 I&N Dec. 187 (A.G. 2018) Interim Decision #3911

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before February 2, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before February 9, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before February 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

188

If you want a copy of the BIA’s unpublished decision in Castro-Tum, go on over to LexisNexis Immigration Community at this link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/05/a-g-sessions-refers-administrative-closure-question-to-himself-matter-of-castro-tum-27-i-amp-n-dec-187-a-g-2018.aspx?Redirected=true

PWS

01-05-18

Personalized Immigration History, Anyone? Four Of Us “Old Timers” — Hon. Gus Villageliu, Hon. M. Christopher Grant, Hon. Jeffrey Chase, & I — Have Put Together Some Of Our Recollections Of The Earlier Days Of The Immigration Court Under The “Comments” To My Recent “York Speech!”

Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ

Additional thoughts and comments welcome!

PWS

06-11-17

Sessions’s First Round Of US Immigration Judge Appointments, Same Old, Same Old — Mostly Former Prosecutors!

Continuing the tradition of the last five Attorneys General, Jeff Sessions appointed seven new U.S. Immigration Judges, six of them former DHS prosecutors.

When EOIR was founded in 1983, the first Chief Immigration Judge, the late William R. Robie, made a concerted effort to balance judicial appointments among government attorneys, the private immigration bar, and others with judicial backgrounds (e.g., state judicial officers, JAG Corps, ALJs from state and local governments). This conscious attempt to develop a diverse judiciary with a broad range of relevant backgrounds and experiences continued in one form or another under Administrations of both parties up through the Clinton Administration and Attorney General Janet Reno.

It was abandoned, however, during the Bush Administration, which famously engaged in politicized hiring of Immmigration Judges during the era of the notorious Monica Goodling.

Perhaps ironically, the Obama Administration showed particular contempt for private sector applicants, running a convoluted “Rube Goldberg type” judicial hiring process that resulted in nearly 90% of judicial appointments from government backgrounds, mostly DHS prosecutors. Given Attorney General Sessions’s views on immigration enforcement, it is virtually impossible to imagine him “reaching out” to recruit those with experience representing immigrants for the literally hundreds of appointments to the U.S. Immigration Courts that he is likely to make over his tenure.

Thus, those with private sector backgrounds are likely to go from “endangered species” to “extinct” within the immigration judiciary by the end of the Trump Administration. A sad development for the individual judges, who are deprived of the opportunity to work with colleagues who could share differing perspectives, as well as for due process  and the American justice system as a whole.

Here is the EOIR press release on the new appointments.  Congratulations and good luck to all! Remember the EOIR Vision: guaranteeing fairness and due process for all.

https://www.justice.gov/eoir/pr/executive-office-immigration-review-swears-seven-immigration-judges

PWS

05-10-17

 

 

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me.  It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case?  Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control.  Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say,  “Congress and President Trump will never go for it.  Nobody in the Washington ‘power curve’ could sell this idea.”  But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle.  His name is Jeff Sessions.  And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?”  Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service.  Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights.  Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me.  I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole.  Yes, there will always be a substantial minority of instances where people act against their best interests.  Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions.  He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views.  The former could be a problem for Sessions, however.  Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms?  Only time will tell.  But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan.  It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron  Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency.  Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission.  But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.”  The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations.  Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17