THE NEW YORKER: Bureaucratic Delays Impede Due Process In U.S. Immigration Court!

http://www.newyorker.com/news/news-desk/what-will-trump-do-with-half-a-million-backlogged-immigration-cases

Jonathan Blitzer writes in The New Yorker:

“In April, Attorney General Jeff Sessions travelled to Nogales, Arizona, to make an announcement. “This is the Trump era,” he said. “The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” While his tone was harsh, and many of the proposals he outlined were hostile to immigrants, he detailed one idea that even some of his critics support: the hiring of more immigration judges.

U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. These delays mean that everyone from asylum seekers to green-card holders faces extended stays in detention while awaiting rulings. Speaking about the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”

Much of the backlog can be traced back to the Obama Administration, when spending on immigration enforcement went up, while Congress dramatically limited funds for hiring more judges. The number of pending cases grew from a hundred and sixty-seven thousand, in 2008, to five hundred and sixty thousand, in 2017, according to the Transactional Records Access Clearinghouse. The broader trend, though, goes back farther. Since the creation of the Department of Homeland Security, in 2002, the increase in resources allocated for border security and immigration policing has always significantly outpaced funding for the courts. (Immigration courts are part of the Department of Justice.) As more and more people have been arrested, detained, and ordered deported, the courts have remained understaffed and underfunded. “We’ve always been an afterthought,” Dana Leigh Marks, the president of the National Association of Immigration Judges, told me.

Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically tak

es about two years, according to the Government Accountability Office. In Nogales, Sessions said that he would try to streamline the hiring process. But until that happens the Administration has been relocating judges to areas where they’re deemed most necessary. “We have already surged twenty-five immigration judges to detention centers along the border,” Sessions said, as if talking about military troop levels.”

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To state the obvious, a court should be run as an independent court system, not a bureaucratic agency within a highly politicized Executive Department like the DOJ. (If you ever wondered whether the DOJ was politicized, recent events should make it clear that it is.)

And, Jeff, these are judges, not troops; and the individuals are not an “invading army,” just mostly ordinary folks seeking refuge, due process, and fair treatment under our laws and the Constitution. Remember, it’s not an immigration crisis; it’s a crisis involving the steady degradation of due process within the U.S. Immigration Court system.

PWS

06-21-17

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose  views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!

The Good

It was a great conference in a great location — Denver. Lots of restaurants and things to do (although I was actually too busy to get out much).

Hats off to Conference Co-Chairs Barry Frager and the Honorable Lawrence O. (“The Burmanator”) Burman for putting the whole thing together and pulling it off without a hitch. Judge Burman, one of the few real judicial leaders at EOIR, also serves as the Chair of the Immigration Law Section (“ILS”) and editor of the outstanding newsletter, The Green Card.

An impressive group of approximately 400 attended, consisting of private practitioners, NGO lawyers, government attorneys, and several Federal Judges. They came from across the country. They heard from a faculty of dozens of experts covering 60 separate learning sessions over two days.

I particularly enjoyed catching up with old friends like fellow retired U.S. Immigration Judges Joan Churchill, Eliza Klein, and Bill Joyce and my former BIA colleague, Judge Lory Rosenberg. I was pleased to serve with Lory as the other member of the Due Process Panel, and I want to thank her for her very kind remarks about me.

A number of folks commented that they had never seen a happier and more relaxed group of Immigration Judges than our “Gang of Four” retired jurists. I should add that Bill and Eliza are both still actively practicing law, while Joan and I have chosen different retirement paths.

I loved the tremendous energy and spirit that the many younger practitioners brought to the conference. As I pointed out in my three presentations, never has the need for skilled immigration lawyers, ready to strongly and courageously fight the battle for due process, been greater. As one panelist put it, this is the time to show off and improve real legal skills and display creativity and toughness in conducting aggressive litigation in an era where the Government is seeking and intentionally provoking confrontation. Enjoy the moment! And these folks are ready to step up to the plate and give the Trump Administration’s anti-immigrant agenda all it can handle on every front.

It was heartening to see many “charter members” of the “New Due Process Army” (“NDPA”) — folks like Alex Ribe, Claudia Cubas, Eileen Blessinger, Jillian Blake, Robyn Barnard, Paromita Shah, and others — participating in the activities. I believe I also got some “new recruits” for the NDPA.

I’m already looking forward to next year in Memphis!

The Bad

Although The Office of Immigration Litigation (“OIL”), the DHS, U.S. Attorneys, and U.S. Magistrates participated in the panels, not a single current EOIR employee was on the faculty, although a number had been invited. The local U.S. Immigration Judges were “no shows,” although they would have had much to offer the group and vice versa.

Only a handful of EOIR employees attended, in their “personal capacities” and at their own expense. A troubling performance from an agency that amazingly cancelled their badly needed judicial training conference. And, the FBA is the only nationwide bar association concentrating on Federal Practice that encourages and makes possible full membership by both Federal employees and private sector attorneys.

The Ugly

In three words: “The Immigration Courts.” Everyone there, including government attorneys, has been affected in one way or another by the ridiculous backlog of non-detained cases. My references to “ADR” – aimless docket reshuffling – and feeling like I was in “Clown Court” some days struck a real chord with the audience.

Almost every session I attended was replete with descriptions of inappropriate behavior from several courts, Charlotte and Atlanta in particular. Things like Immigration Judges going off record and saying that they didn’t believe in A-R-C-G- (asylum for domestic violence) or asylum for Central Americans. Rude and intimidating treatment of counsel, failure to listen to arguments, unwillingness to grant bond, applying wrong legal standards, and inappropriately going “off record” were among the “horror stories” mentioned. It’s quite obvious that Atlanta and Charlotte, among others, are failing to follow the generous standards for granting asylum set forth by the Supreme Court in Cardoza-Fonseca and reinforced by the BIA in Mogharrabi.

It’s not about what an Immigration Judge personally believes. It’s about fairly and impartially applying the law, particularly to those needing protection. Gosh, I often had to apply BIA precedents that I not only disagreed with, but where I had actually dissented from the majority decision. But, the job of a judge is to follow the law, whether one likes it or not.

Much of the blame goes to the BIA. It sometimes appears to me that certain BIA Appellate Immigration Judges and panels are committed neither to enforcing due process nor their own precedent in Mogharrabi. Some folks are fortunate enough to be in Circuits that hold the BIA to the appropriate standards; others labor away in Circuits that have “blown off” their judicial review function by ”over-deferring” to the BIA. Clearly, the BIA has lost sight of its vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

In any event, while some of the behavior issues could perhaps be addressed by EOIR management through the complaint system, that won’t solve the problem. Only the BIA has the ability to correct incorrect applications and attitudes about the law and due process in the U.S. Immigration Courts. Only the BIA can bring “outlier courts” – those with far too many asylum denials – into line with the law.

As I gave my keynote speech involving the history of EOIR, it occurred to me that EOIR, quite sadly, was actually returning to what the Immigration Courts were before the “spinoff” from the “Legacy INS:” inbred, staffed almost exclusively with former prosecutors, not user friendly, mismanaged, lacking necessary technology, and essentially being used as a tool for immigration enforcement. In other words, there is a notable lack of judicial independence. Very sad. It appears that as an due process oriented court system, EOIR has “run its course” in the DOJ and is now returning to it’s origins as a captive of the enforcement system.

The Immigration Courts’ problems have been aggravated by DHS leadership’s apparent decision to limit “prosecutorial discretion,” discourage cooperation and stipulation, and to “go to the mat” on everything. At a time when DHS should be looking for ways to get cases off the dockets, they instead appear to be looking for ways to jam the docket even fuller with cases, many of which are unlikely to be resolved in the next decade.

 

 

PWS

05-16-17

IT’S TRUE! — DOJ Eliminates U.S. Immigration Judges’ Only Annual Training! — Quality & Professionalism “De-Prioritized” In Trump Era — Billions For Enforcement & Incarceration — Crumbs For Due Process — When Is Congress Going To “Just Say No?”

Reliable sources have now confirmed what I reported in this blog earlier this week (http://wp.me/p8eeJm-Ge): the DOJ has eliminated the U.S. Immigration Court’s only formal annual training. U.S. Immigration Judges have been ordered to schedule cases during the week normally reserved for advanced training, continuing judicial education, and professional development.

This news couldn’t come at a worse time for the beleaguered U.S. Immigration Courts. Dozens of new U.S. Immigration Judges have been appointed in the last year, most of whom have never met their judicial colleagues across the nation.

Moreover, this would be their only opportunity beyond some brief “basic training” to pursue continuing judicial education in this complex, controversial, and ever-changing field. It’s also an opportunity to “catch jump” on what all the Circuit Courts of Appeals are doing, as well as to hear from BIA Appellate Immigration Judges about developments at the Board. Additionally, it is a key opportunity to address the disturbing, continuing problem of inexplicable discrepancies in asylum adjudication (84% grant rate in one Immigration Court; 2% grant rate in another) within the Immigration Court system.

Some of the training at the Annual Conference is statutorily required, such as updates under the International Religious Freedom Act, which, perhaps ironically, often highlights the persecution faced by Christian groups in China and the Middle East, a subject on which the Administration has expressed concern. Other sessions cover ethics training required by DOJ regulations.

In addition, the DOJ considers U.S. Immigration Judges to be “DOJ attorneys.” As a consequence, judges are required to maintain “active” status in at least one state bar, even though they perform only quasi-judicial duties and therefore would be eligible for “active judicial status” in many states.

The Annual Conference usually meets the “mandatory CLE” requirements of various state bars. But, when there is no Annual Conference, individual judges must take leave from the bench to complete the coursework required by their respective state bars. Therefore, Immigration Judges are off the bench learning about state real estate transactions and changes in tort law, when they could instead be advancing their knowledge in immigration and refugee law as well as “best judicial practices” in Federal Courts.

I get frequent reports of cratering morale among Immigration Judges and court staff, increases in the already extraordinary levels of stress, and impending retirements of some of the best and most experienced judges. Some Immigration Judges returning from details to hastily thrown together so-called “Immigration Courts” in DHS detention centers were shocked, upset, and angered to see with their own eyes that individuals with viable claims for relief, most of them asylum or related protection, were being “duressed” by the coercive conditions and atmosphere in DHS detention to abandon their claims and take “final orders of removal,” just to be out of detention. And, the Administration is just getting started on its plans for “Incarceration Nation.”

Lawyers report that they show up at Immigration Court with clients and witness in tow prepared for merits cases which have been pending for years, only to find out that the cases have been rescheduled to a dates several more years in the future, without advance notice, so that the Immigration Judges can be detailed to a detention centers in other parts of the country.

When is Congress finally going to step in and provide some meaningful oversight of the unfolding due process disaster in U.S. Immigration Courts? Regardless of where one stands on the philosophical issues surrounding immigration enforcement, providing due process and complying with constitutional, statutory, and international treaty obligations, including reasonable access to counsel (which is not available in most DHS detention center locations), should be a bipartisan priority.

Isn’t it time for a bipartisan group of GOP legislators concerned about the billions of dollars being mindlessly poured into immigration enforcement and Democrats who are concerned about due process getting together and holding the Trump Administration accountable for what’s really happening in our Immigration Courts?

PWS

04-13-17