GONZO’S “KANGAROO COURT PLAN” MOCKS CONSTITUTION – “Performance Metrics For Judges” Are Thinly Disguised “Deportation Quotas” for “Assembly Line Injustice” — Last Pretense Of “Fair & Impartial Adjudication” About To Disappear!

https://www.washingtonpost.com/local/immigration/immigration-judges-say-proposed-quotas-from-justice-dept-threaten-independence/2017/10/12/3ed86992-aee1-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.bcee5ec17f24

Maria Sacchetti reports for the Washington Post:

“The Trump administration is taking steps to impose “numeric performance standards” on federal immigration judges, drawing a sharp rebuke from judges who say production quotas or similar measures will threaten judicial independence, as well as their ability to decide life-or-death deportation cases.

The White House says it aims to reduce an “enormous” backlog of 600,000 cases, triple the number in 2009, that cripples its ability to deport immigrants as President Trump mandated in January.

The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.

“That is a huge, huge, huge encroachment on judicial independence,” said Dana Leigh Marks, spokeswoman and former president of the association and a judge for more than 30 years. “It’s trying to turn immigration judges into assembly-line workers.”

The White House tucked its proposal — a six-word statement saying it wants to “establish performance metrics for immigration judges” — into a broader package of immigration reforms it rolled out Sunday night.

But other documents obtained by The Washington Post show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.”

The Justice Department, which runs the courts through the Executive Office for Immigration Review, declined to comment or otherwise provide details about the numeric standards.

The Justice Department has expressed concern about the backlog and discouraged judges from letting cases drag on too long, though it has insisted that they decide the cases fairly and follow due process. On Thursday, Attorney General Jeff Sessions expressed concern that false asylum cases are clogging up the courts.

The judges’ union says its current contract language prevents the government from rating them based on the number of cases they complete or the time it takes to decide them.

But now, they say, the department is trying to rescind that language, and advocates say it could violate a federal regulation that requires judges to “exercise their independent judgment and discretion” when deciding cases.

Advocates and immigration lawyers say imposing numerical expectations on judges unfairly faults them for the massive backlog. Successive administrations have expanded immigration enforcement without giving the courts enough money or judges to decide cases in a timely way, they say. An average case for a non-detained immigrant can drag on for more than two years, though some last much longer.

“Immigration judges should have one goal and that goal should be the fair adjudication of cases,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services and advocacy to immigrants nationwide. “That’s the only metric that should count.”

Immigration lawyers say the proposed standards risk adding to disadvantages immigrants already face in immigration courts. Most defendants do not speak English as their first language if at all, are not entitled to lawyers at the government’s expense, and thousands end up trying to defend themselves.

Often immigrants are jailed and given hearings in remote locations, such as rural Georgia or Upstate New York, which makes it difficult to gather records and witnesses needed to bring a case.

“People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” said Gregory Chen, director of government relations for the American Immigration Lawyers Association, which has 15,000 members.

Traditional federal judges are not subject to quotas.

The rare public dispute between the immigration judges and the Justice Department comes as the Trump administration is demanding a commitment to increased enforcement and other immigration restrictions in exchange for legal status for 690,000 young undocumented immigrants who, until recently, were protected from deportation under an Obama-era program. Sessions announced the end of the program last month, and the young immigrants will start to lose their work permits and other protections in March.

In January, Trump issued a slate of executive orders that sought to crack down on immigration. He revoked President Barack Obama’s limits on enforcement and effectively exposed all 11 million undocumented immigrants in the United States to arrest.

On Sunday, Trump also called for more immigration-enforcement lawyers and more detention beds, which would further increase the caseloads of the courts.

He is also planning to seek congressional funding for an additional 370 immigration judges, which would more than double the current number.

Immigration arrests are up more than 40 percent since Trump took office, and deportation orders are also rising. From Feb. 1 to August 31, judges have issued 88,383 rulings, and in the majority of cases — 69,160 — immigrants were deported or ordered to voluntarily leave the country, a 36 percent increase over the corresponding period in 2016.

The immigration courts have clamored for greater independence from the Justice Department for years and also have sought greater control over their budget. They have long complained about a lack of funding, burnout rates that rival that of prison wardens, and caseloads exceeding 2,000 each. Some judges are scheduling cases into 2022.

On Sunday, Sessions — who appoints the immigration judges and is the court’s highest authority — called the White House’s broad immigration proposals “reasonable.”

“If followed, it will produce an immigration system with integrity and one in which we can take pride,” he said.”

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Will the stunningly xenophobic “Gonzo Apocalypto” get away with his lawless plan to strip migrants of the last vestiges of their already restricted Constitutional rights to due process? Or, will the Article III Courts step in, assert themselves, insist on due process and fair and impartial adjudication in Immigration Court, and throw the already staggering Immigration Court System into complete collapse, thereby stopping the “Removal Railway?”

The showdown is coming. I think the eventual outcome is “too close to call.”  So far, Sessions is well on his way to co-opting the Immigration Court as just another “whistle stop on the Removal Railway!”

The current backlog has multiple causes: 1) failure of Congress and the DOJ to properly fund and staff the U.S. Immigration Courts; 2) poor enforcement strategies by DHS resulting in too many “low priority” cases on the dockets; 3) often politicized, always changing, sometimes conflicting “case priorities and goals” established by DOJ and EOIR; 4) lack of authority for Immigration Judges to control their own dockets; 5) outdated technology resulting in a “paper heavy” system where documents are often misfiled or missing from the record when needed by the Judges;  and 6) “Aimless Docket Reshuffling” caused by moving cases around to fit DHS Enforcement priorities and ill-conceived and poorly planned details of Immigration Judges away from their normal dockets. “Productivity,” which consistently far exceeds the “optimal” 500 completions per Judge annually (currently approximately 770 per Judge) is not one of the primary factors causing the backlog.

Overall, the current backlog is the product of mismanagement of the Immigration Courts by the DOJ spanning multiple Administrations. No wonder the politos at the Sessions DOJ are trying to shift blame to the Immigration Judges, hapless migrants struggling to achieve justice in an “intentionally user unfriendly system,” and stressed out private attorneys, many serving pro bono or for minimal compensation. How would YOU like to be a migrant fighting for your life in a so-called “court system” beholden to Jeff Sessions?

We’re starting to look pretty “Third World.” Sessions and the rest of the “Trump Gang” operate much like corrupt Government officials in “Third World” countries where the rulers control the courts, manipulation of the justice system for political ends is SOP, and claims to aspire to “fairness” ring hollow.

PWS

10-13-17

 

PARTY OF INFAMY AND GROSS INDECENCY: GOP’S WHITE NATIONALIST WING SEEKS TO DESTROY U.S. ASYLUM LAW, SCREW THE MOST VULNERABLE – Want To Turn America Into A “Rogue Nation” That Trashes Human Rights! – THEY MUST BE EXPOSED AND STOPPED!

http://www.motherjones.com/politics/2017/10/trumps-immigration-proposal-could-make-it-radically-harder-to-get-asylum/

Noah Lanard reports for Mother Jones:

“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.

On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Security to quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.  

At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.

Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”

But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place. 

The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!

Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights. Raising the standards would virtually guarantee rejection of all such asylum seekers without any hearing at all. The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.

Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings. Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court

Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.

Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like:  more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.

Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased against such claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim”  of the type that are much more routinely granted across the board.

Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.

PWS

10-10-17

 

AMERICA’S KANGAROO COURT SYSTEM: EOIR HELPING DHS COME UP WITH WAYS TO DUMP ON UNACCOMPANIED KIDS! — THE “THE FACADE OF JUSTICE AT JUSTICE” CONTINUES WHILE CONGRESS AND ARTICLE III COURTS ABDICATE RESPONSIBILITY FOR A SYSTEM THAT MOCKS DUE PROCESS AND THE CONSTITUTION! — CNN’S Tal Kopan With The Scoop!

http://www.cnn.com/2017/10/11/politics/trump-administration-dhs-immigration-policies/index.html

Tal reports:

“Washington (CNN)Even as the Trump administration is asking Congress to approve a tough overhaul of the nation’s immigration laws, the Department of Homeland Security is also quietly exploring ways it could transform the US immigration system on its own.

The department has been examining a range of subtle modifications to immigration policies that could have major consequences, including limiting protections for unaccompanied minors who come to the US illegally, expanding the use of speedy deportation proceedings, and tightening visa programs in ways that could limit legal immigration to the US, according to multiple sources familiar with the plans.
None of the policies being explored are finalized, according to the sources, and are in various stages of development. Any of them could change or fall by the wayside. Some of them are also included at least in part in the wish list of immigration priorities that President Donald Trump sent to Congress this week, and it’s unclear whether the administration will wait to see the results of negotiations over the future of the Deferred Action for Childhood Arrivals (DACA) program that President Donald Trump has chosen to end.

Still, the proposals under consideration illustrate the extent to which the administration could attempt to dramatically change immigration in the US through unilateral executive action.
“Do you think Obama did a lot? That’s my answer,” said one former DHS official when asked how transformative the change could be. “They could do quite a bit.”
DACA itself was an example of how former President Barack Obama, frustrated with congressional inaction, sought to use executive authority to take action on immigration, putting in place the program to protect young undocumented immigrations brought to the US as children from deportation in 2012.
But the administration is now exploring rolling back more Obama-era policies, and changing even older systems.
DHS did not respond to a request for comment about the policies being explored or its process.
Targeting protections for unaccompanied minors
One effort underway is exploring what can be done about unaccompanied children (UACs), a category of undocumented immigrants who are caught illegally crossing the border into the US, are under age 18, and are not accompanied or met by a parent or guardian in the US. Those UACs, by law and legal settlement, are handed over to the Department of Health and Human Services for settling in the US, given protections from expedited removal proceedings and given special opportunities to pursue asylum cases in the US.
DHS and the Department of Justice have been exploring options to tighten the protections for UACs, including no longer considering them UACs if they’re reunited with parents or guardians in the US by HHS or once they turn 18.

In a previously unreported memo, obtained by CNN, the general counsel of the Executive Office of Immigration Review, which manages the nation’s immigration courts, wrote in a legal opinion that the administration would be able to decide a UAC was no longer eligible for protections — a sea change in the way the 2008 law granting those protections has been interpreted.
The Trump administration has portrayed the UAC protections as a loophole in the law that can be exploited by gangs, though experts have testified before Congress that the minors under the program are more likely to be victimized by gangs in the US due to a lack of a support network than to be gang members. The administration also has sought to crack down on parents who pay smugglers to bring their children into the US illegally, even to escape dangerous situations in Central America.
The White House also asked Congress to amend the 2008 law to restrict UAC protections.
In previously unreported comments made last month at a security conference in Washington, acting Immigration and Customs Enforcement Director Tom Homan said that ICE is actively looking at the adults HHS places UACs with, and if they are in the US illegally, they will be processed for deportation — and if a smuggler was paid, they could be prosecuted for human trafficking.
DOJ touts effects of surge of immigration judges sent to border
DOJ touts effects of surge of immigration judges sent to border
“You cannot hide in the shadows, you can’t be an illegal alien in the United States, have your undocumented child smuggled at the hands of a criminal organization, and stay in the shadows,” Homan said. “We’re going to put the parents in proceedings, immigration proceedings, at a minimum. … Is that cruel? I don’t think so. Because if that child is really escaping fear and persecution, he’s going to stand in front of an immigration judge to plead his case, his parents should be standing shoulder to shoulder with him. I call that parenting.”
DHS is also continuing to weigh its options to expand the use of expedited removal more generally — a speedier process of deportation that bypasses a lengthy court process in particular cases — as authorized by Trump’s January executive order on immigration.
Legal immigration tightening
Other efforts in the works include ways to tighten legal avenues to come to the US.
Two policies being looked at are the subject of litigation in the DC Circuit court — work authorizations for spouses of high-skilled visa holders and an expansion of a program that allows STEM students to stay in the US an extra two years for training.
Both policies were challenged in the courts, and now the administration is considering whether to roll them back.
On the spousal authorizations, DHS told the court as much in a filing last month, asking for extra time for the DHS review to finish.
That filing points to a DHS review of “all” of the agency’s immigration policies, citing the President’s Executive Order to “buy American and hire American.”
“Executive Order 13,788 is an intervening event necessitating careful, considered review of all of DHS’s immigration policies to ensure that the interests of US workers are being protected,” the attorneys wrote, citing the order’s instructions to create new rules, if necessary, “to protect the interests of United States workers in the administration of our immigration system.”
Trump admin quietly made asylum more difficult in the US
Trump admin quietly made asylum more difficult in the US
DHS has also moved to tighten asylum claim credibility thresholds, and is exploring asking Congress for more authority to do so. Another target is reportedly cultural exchange visas, which according to The Wall Street Journal are also under scrutiny after the “hire American” order.
Further unilateral moves wouldn’t even require policy changes, immigration attorneys fear. Attorneys who represent immigration clients fear that simply by slowing down the visa process, DHS could substantially decrease the number of immigrants admitted to the United States. US Citizenship and Immigration Services announced this summer it would begin requiring interviews for all green card applicants on employment and refugee grounds, and that it would roll out required interviews for other categories over time, adding a substantial and potentially lengthy hurdle to achieving legal permanent residency.
“If the wait time for naturalizations increases by three months, USCIS can naturalize 25% fewer people per year, which would mean millions of people over a four-year period,” said Leon Fresco, an immigration attorney and former Obama administration DOJ official. “Even without a policy change, the administration (can accomplish) dramatic reductions to legal immigration through increases in processing times and taking a hawkish approach to finding reasons for denials of immigration applications.”
DHS pointed CNN to statistics showing no increase in the rate of denials of immigration applications, though the backlog of pending applications has grown steadily over the past two years.
Internal jockeying
One-quarter of DACA renewals not in on deadline day
One-quarter of DACA renewals not in on deadline day
Sources familiar with the inner workings of DHS describe an environment where political appointees and policy staff with strongly held opinions circulate ideas that sometimes reach the press before front office and secretarial staff are even aware of the discussions.
While political appointees and career officials are not described as butting heads, some of policy ideas do end up moderated by career employees on practical grounds. One source also described some employees of USCIS, which administers DACA, as getting emotional when the plan was made to end the program.
“Once it gets to a senior level, there are pretty robust discussions,” another source familiar said. “And once it gets to that level there are folks with ideas, and then folks who have been around for a while who say, ‘That won’t work.'”
Those competing ideas are then ultimately decided on by the secretary and high-level decision makers, though sources say political appointees are sometimes in a position to have influence over what information flows to the front office and top officials.
“The secretary and the decision makers end up with that (dynamic),” the source said.”

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Immigration “Courts” run and controlled by Political Enforcement Officials and actively engaged in looking for ways to diminish the rights of individuals coming before them are not “real courts” and are not capable for delivering fair, unbiased, and impartial justice in accordance with the Due Process Clause of the U.S. Constitution. This kangaroo court system, operating under false premises, is unconstitutional (in addition to be incompetently administered)! 

Will the Article III Courts ever do their duty, put this corrupt and unlawful system out of its misery, and restore at least some semblance of due process and justice for immigrants? Or, will they “go along to get along” and thus make themselves part of one of the most shameful charades of justice In American Legal History?

U.S. IMMIGRATION COURTS: Judge Lawrence O. “Burmanator” Burman (SOLELY In His NAIJ Officer Capacity) Gives Rare Peek Inside U.S. Immigration Courts’ Disaster Zone From A Sitting Trial Judge Who “Tells It Like It Is!”

Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017.  Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

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Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of  “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great  “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding  authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17

 

 

 

 

 

 

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus  on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

 

HON. JEFFREY CHASE RESPONDS TO CHIEF JUDGE KELLER’S OPPM: Continuances Promote Due Process — U.S. Immigration Judges Should Be Free To Exercise Discretion — Memo Fails To Recognize Dire Straits Of NGOs And Asylum Seekers Largely Caused By DOJ & EOIR’s Own Policies!

https://www.jeffreyschase.com/blog/2017/8/3/in-support-of-continuances

Jeffrey writes:

“The chief judge’s memo correctly states that “at least one continuance should be granted” in order to allow a respondent to obtain counsel.  However, the memo raises concerns about granting additional adjournments, “particularly when all respondents are initially provided a list of pro bono legal services…”  However, the memo fails to mention the strain the same backlog has put on the limited resources of the listed pro bono representatives.  Therefore, denying additional continuances will require more applicants to proceed without counsel.  At present, many cases pending before the courts involve asylum seekers (including minors) fleeing gang violence in Central America and Mexico.  Many of these claims are based on the claimants’ membership in a particular social group, a still-evolving area of the law.  BIA precedent requires an asylum applicant to “delineate and establish to the Immigration Judge any particular social group he claims.”  See Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009).  “Particular social group” is a term of art that a pro se applicant would not understand.  Furthermore, a knowledge of existing case law is essential in crafting a proposed social group to present to the immigration judge.  In other words, the denial of additional continuances to allow an asylum applicant to obtain representation in order to move a case along can be fatal to an individual’s chances for obtaining relief, and can further undermine the applicant’s chance of success on appeal.

Hopefully, judges will continue to consider all of the above in their application of the Chief Judge’s memo.”

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Read Jeffrey’s complete commentary at the link.

I agree entirely with Jeffrey that continuances play a critical role in maintaining due process.  I also agree that memos such as this OPPM show a total misunderstanding and lack of appreciation for the situation of NGOs — who are basically keeping the system afloat — and the due process need for counsel in asylum cases. See my comments from yesterday on the OPPM:

http://immigrationcourtside.com/2017/08/02/eoir-issues-oppm-on-continuances-apparent-attempt-to-shift-focus-away-from-politically-motivated-adr-that-is-causing-massive-backlogs/.

Contrary to the Chief Judge’s tone, problems caused by DOJ and EOIR management have basically tied the individual Immigration Judges’ hands in granting continuances. Let’s face it, after DOJ and EOIR arbitrarily “orbit” ready for trial non-detained cases for their own political goals, individual Immigration Judges lose both credibility and effective control of their dockets. How can a judge in good conscience deny most motions to continue when cases are intentionally left pending for years:  attorneys change, the law changes, country conditions change, witnesses change or become unavailable, and other forms of relief pop up.

Moreover, as pointed out by Jeffrey, rather than simplifying the system so that protection could be quickly granted in more straightforward cases, the BIA has intentionally made the process more complicated — to the extent that it is virtually impossible to imagine that any unrepresented asylum applicant could document a PSG case to the BIA’s hyper-technical specifications.

And, Congress also shares responsibility for the current untenable situation. During several relatively recent “contrived” Government shutdowns, the Immigration Court’s entire non-detained docket and the the vast majority of Immigration Judges who staffed them were determined to be “nonessential” and therefore “furloughed,” leaving active dockets “to rot.” Non-detained cases were cancelled en masse and the court system never really recovered. For all I know, some of those cases are still “off docket.”

Also, these actions sent a strong message that the politicos in both the Legislative and Executive branches neither respected the work of U.S. Immigration Judges nor considered it important. The “non-detained docket” basically became the “who cares docket.”

The Obama Administration then further aggravated the problem by unwisely (and without consulting “line” U.S. Immigration Judges) prioritizing new “Not Quite Ready For Prime Time” Southern Border cases over regularly scheduled non-detained cases, thus sending  the non-detained docket further into complete chaos: “Aimless Docket Reshuffling.” Now, the Trump Administration’s “gonzo, anything goes, show no judgement, exercise no prosecutorial discretion” regime is pushing the courts over the brink.

We need bipartisan legislation to get the U.S. Immigration Courts out of the DOJ and into an independent judicial structure where they can focus on providing high quality due process in an efficient, predictable, and systematic manner.

PWS

08-03-17