The Gibson Report, June 26, 2017 — Note EOIR Is Recruiting For US Immigration Judges, Application Period Closes JUNE 29, 2017

The Gibson Report, June 26, 2017

The IJ Recruitment link is under “Calls for Action.” I agree wholeheartedly with Elizabeth that it would be great to see some folks who have been advocates for immigrants included in the modern Immigration Judiciary. But, based on the last 16 years, don’t hold your breath. The Immigration Judiciary for decades to come is being put together without fair consideration of those whose primary experience was gained outside of government.

PWS

06-26-17

Justice Anthony Kennedy Likely To Retire, Perhaps As Soon As Today — It Might Touch Off Rhetorical Battle, But No Bork Repeat

Reports have been circulating that Justice Anthony Kennedy will retire at the end of the Supreme Court’s current term, perhaps as soon as today. Since Justice Kennedy is considered the “swing” vote among the Court’s four conservative and four liberal Justices, President Trump’s appointment of a replacement will swing  control decidedly in favor of the conservatives.

While some have predicted a “Bork like” confirmation battle, that’s not going to happen. As the minority party, the Democrats will certainly have a chance to put their objections to the candidate on the record and in the media. But, the GOP has the votes necessary for confirmation. As in most things in Washington these days,  the Democrats have neither influence nor power. That’s what happens when you lose elections, particularly for control of the Senate.

As we’ve seen during the Cabinet confirmation process, President Trump could nominate a ham sandwich for the Supreme Court vacancy and the GOP would vote to confirm. By the time this is over, the Democrats could be wishing for another Justice Neil Gorsuch. The next pick is likely to make Gorsuch look like a liberal. A sobering thought for those counting on the Court to keep Trump in check.

PWS

06-26-17

RELIGION: Gary Silverman In Financial Times: How White Evangelicals Traded The Mercy & Hope Of Jesus Christ For The False “Profit” Donald Trump!

https://www.ft.com/content/b41d0ee6-1e96-11e7-b7d3-163f5a7f229c

Silverman writes:

“Trump’s efforts to reach evangelicals during the campaign were marred by technical difficulties. After an appearance at Liberty University in Virginia, which was founded by Falwell, Trump was lampooned for quoting from a section of the Bible he called “Two Corinthians”, rather than “Second Corinthians”, as would customarily be done. Ultimately, Liberty University split over Trump. Its current president, Jerry Falwell Jr, endorsed his candidacy. But Mark DeMoss, a member of the university’s board of trustees and a former chief of staff for the elder Falwell, objected and resigned as a trustee. In a Washington Post interview last year, DeMoss described Trump’s rhetoric as antithetical to Christian values.

“Donald Trump is the only candidate who has dealt almost exclusively in the politics of personal insult,” DeMoss said. “The bullying tactics of personal insult have no defence — and certainly not for anyone who claims to be a follower of Christ. That’s what’s disturbing to so many people. It’s not [the] Christ-like behaviour that Liberty has spent 40 years promoting with its students.”

Nonetheless, Trump was backed by 81 per cent of white voters who identified themselves as evangelical Christians, more than recent Republican candidates such as Mitt Romney and John McCain, according to the Pew Research Center, and more even than George W Bush, whose strategist Karl Rove made wooing them a priority of the campaign. Analysts say Trump made evangelicals an offer that they could not refuse. Unlike his Democratic opponent Hillary Clinton — who was both disliked by conservatives and uncompromising in her support of a woman’s right to choose — Trump pledged to appoint an anti-abortion justice to fill the vacancy on a Supreme Court that was split between conservatives and liberals.

The white evangelical flight to Trump has caused “deep heartbreak” for “evangelicals of colour” who see him as a bigot, says Jim Wallis, a progressive evangelical leader in Washington. “It’s the most painful divide I have seen in the churches since the beginning of the civil rights movement.”

. . . .

But that’s not the way things look at the house on a hill in Auburn, Alabama, where Wayne Flynt lives with his wife of 55 years, Dorothy. As evangelical Christianity has grown more successful in the political realm, Flynt fears that it has been reduced to a sum of its slogans. Lost in the transition, he says, is the traditional evangelical standard for sizing up candidates — “personal moral character”, which includes such criteria as marital fidelity, church attendance and kindness.

“No one I know of would argue that Donald Trump inculcates moral character,” Flynt says. “What has happened to American Christianity is there is this afterglow of what a candidate is supposed to represent. It’s no longer moral character. It’s policy positions on things that bother evangelicals.”

Flynt says evangelical Christians are mainly mobilising against the sins they either do not want to commit (homosexual acts) or cannot commit (undergoing an abortion, in the case of men). They turn a blind eye toward temptations such as adultery and divorce that interest them. In 2010, the Southern Baptist Convention passed a resolution calling the rising incidence of divorce among its members a “scandal”. A Pew Research Center study in 2015 found that evangelical Protestants in the US were more likely to be divorced or separated than Catholics, Jews, Muslims or atheists.

“Jesus says four times in four different places: do not divorce,” Flynt says. “Does divorce bother evangelicals? No, absolutely not. Does adultery bother evangelicals? No, not really, because if so they wouldn’t have voted for Donald Trump. So what bothers them? Abortion and same-sex marriage. Beyond that, there’s no longer an agenda.”

Flynt, who left the Southern Baptist Convention in 1979 to protest its turn to the right, notes ruefully that his former denomination has lost members for nine years in a row.

Into this religious void, he believes, stepped Trump, an unabashed materialist and hedonist — “What is right to Donald Trump is what gives him pleasure,” Flynt says — who thinks that he alone can make America great again.

“To be sure, every politician has some element of narcissism, but he has perfected narcissism, he has made it the supreme element of his life, and not only that, evangelicals have responded in an almost messianic way that he is the saviour, which makes him feel really good because he does believe he is the saviour,” Flynt says. “It is kind of curious evangelicals would not be offended by this. I am as an American Christian. I’m offended because I already thought following Jesus was going to make us great again.”

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

Whatever happened to the Christian message of humanity, humility, faith, self-sacrifice, generosity to all, mercy, forgiveness, understanding, peace, elevating the spiritual over the material, and grace? I hear those things from Pope Francis (although I’m not a Catholic). But, not from Trump and his zealots. Go figure!

PWS

06-25-17

Think The Federal Courts Are Going To Save Our Republic From Trump? — Guess Again! — Trump (Or, More Accurately The Heritage Foundation) Is About To Remake Them In His Own Image!

http://www.huffingtonpost.com/entry/trump-judicial-nominees-federalist-society_us_59497166e4b04c5e50256f0c?lq

HuffPost reports:

“WASHINGTON ― Most days, it seems like President Donald Trump is sabotaging his own agenda, one tweet at a time. But the White House has been quietly plowing ahead in one area that will affect generations of people: the courts.

Trump is unbelievably well-positioned to fill up federal courts with lifetime judges. He inherited a whopping 108 court vacancies when he became president ― double the number of vacancies President Barack Obama inherited when he took office.

The reason Trump gets to fill so many seats is partly because Obama was slow to fill court vacancies early in his tenure. But the main reason is Republicans’ years-long strategy of denying votes to Obama’s court picks. They refused to recommend judicial nominees, filibustered others, used procedural rules to drag out the confirmation process and, by Obama’s final year, blocked nominees they had recommended just to prevent him from filling more seats.

ALISSA SCHELLER/HUFFPOST

Court vacancies have only increased since Trump took office, as older judges have steadily retired. Trump has already nominated more than three times as many judges as Obama had at this point in his presidency ― 21 compared with six for Obama.

With Republicans in control of the Senate, Trump’s court picks will have a relatively easy time getting confirmed, too. The chairman of the Judiciary Committee, Sen. Chuck Grassley (R-Iowa), has hinted that he may tweak the committee’s rules to make it easier for Republicans to advance some of Trump’s nominees without Democratic support. And once nominees make it to the Senate floor, it takes only 51 votes to advance their nominations and confirm them. There are 52 Republicans, which means they could confirm all of Trump’s district and circuit court nominees without a single Democratic vote.

It used to take 60 votes to advance district and circuit court nominees, but Senate Democrats changed the filibuster rule in 2013 in order to get around a Republican blockade on Obama’s court picks. Now Trump benefits from that change.

It is, in effect, the perfect combination of factors for conservatives eager to tilt the nation’s courts to the right. Trump has piles of seats to fill, a list of nominees recommended to the White House by outside conservative groups, and a Republican Senate eager to confirm them.

“It is a huge opportunity,” said Carl Tobias, a University of Richmond law professor who specializes in judicial nominations. “The question is how quickly they will move in the future. A lot of what they’ve done so far is low-hanging fruit and pretty easy to do.”

ALISSA SCHELLER/HUFFPOST

A good chunk of Trump’s judicial nominees so far have come through recommendations from The Federalist Society, a right-wing legal organization. Its executive vice president, Leonard Leo, was instrumental in helping the White House put Neil Gorsuch on the Supreme Court. He recommended Gorsuch to Trump last fall and took a temporary leave from his job earlier this year to help prepare Gorsuch for his Senate confirmation hearing.

Leo also gave Trump a list of names of potential judicial picks that conservatives would like to see on the federal bench. Trump has already nominated several of them.

One of them is John Bush, a Kentucky lawyer who runs a local chapter of The Federalist Society. Trump nominated Bush, 52, last month to a lifetime post on the 6th U.S. Circuit Court of Appeals. Progressive groups are vowing to fight his confirmation given some of his past remarks, which include comparing abortion to slavery and referring to them as “the two greatest tragedies in our country.” Bush has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

Damien Schiff, also a member of The Federalist Society, is Trump’s nominee to the U.S. Court of Federal Claims. The 37-year-old attorney at the conservative Pacific Legal Foundation would serve a 15-year term if confirmed. He came under fire for calling Supreme Court Justice Anthony Kennedy “a judicial prostitute” on a blog several years ago. He has also criticized efforts to prevent bullying of LGBTQ students, referring to messages of equality as “teaching ‘gayness’ in schools,” and has argued that states should be allowed to criminalize “consensual sodomy.”

Both of those nominees had their Senate confirmation hearings last week. They’re now waiting for the Judiciary Committee to reconvene and vote out their nominations.

It’s not unusual for a president to consult with outside groups for potential judicial nominees. What’s different, says Tobias, is how heavily Trump seems to be relying on this particular group versus working directly with senators for judicial recommendations from their states, which is the standard path.

“I think Leonard Leo is just feeding him those people,” he said. “There are real questions about that, whether that’s good for the courts and gets us the finest nominees.”

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

Read the entire article at the above link.

Remember, folks, these are lifetime appointments, so although, one way or another, Trump will eventually be gone, his judges will be around for decades. And, because Democrats can’t win Senate elections, they have lost their power to exert any influence whatsoever over Trump’s choices.

PWS

06-22-17

 

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.”

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

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

EOIR INVESTS ELEVEN NEW U.S. IMMIGRATION JUDGES — PRIVATE SECTOR TOTALLY SHUT OUT!

Here are the bios of the new U.S. Immigration Judges:

IJInvestiture06162017

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

This brings the total number of sitting U.S. Immigration Judges to 326. Congratulations to the new Judges, and please don’t forget the due process mission of the U.S. Immigration Courts!

Unfortunately, however, this continues the trend of creating a one-sided U.S. Immigration Court which basically has excluded from the 21st Century Immigration Judiciary those who gained all or most of their experience representing respondents, teaching, or writing in the public sector. It’s not particularly surprising that Attorney General Jeff Sessions, who has expressed a strong enforcement bias, would prefer to “go to the Government well” for all or most of his selections.

However, the real problem here is with the DOJ during the Obama Administration.  With a chance to fill perhaps a record number of U.S. Immigration Judge positions over eight years, and to create an evenly balanced, diverse Immigration Judiciary in the process, they not only turned the hiring process in to a ridiculous two-year average cycle, but also selected 88% of the candidates from Government backgrounds.

Why would someone take two years for a selection process that selects from a limited inside pool anyway? And, why would you lead outside applicants to take the time to apply, believing they had a fair chance of competing, when the process obviously was “fixed” in favor of insiders? Sort of reminds me of the discussion of the labor certification recruitment process that we recently had in my Immigration Law & Policy Class at Georgetown Law!

Just more ways in which the “Due Process Vision” of the U.S. Immigration Courts has basically been trashed by the last three Administrations!

PWS

06-19-17

US IMMIGRATION COURT CHAOS — NEW TRAC STATS PROVE MY CASE: 79 More IJs + ADR** + No Plan + Arbitrary DHS Enforcement = More Backlog — Administration On Track To Top 600,000 Pending Cases By Fall — Due Process Disaster — Some Hearings Being Set For 2022 (That’s Halfway Through The NEXT Administration) !

** ADR = “Aimless Docket Reshuffling”

http://trac.syr.edu/immigration/reports/468/

Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.

As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.

These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.

How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.

These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:

http://trac.syr.edu/immigration/reports/468/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

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

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

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://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 U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://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

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

Wow! The Trump Administration has proved to be incompetent at just about everything except offending allies, paving the way for dirtier air and water, undermining civil rights, busting more vulnerable individuals, most of whom are doing the US no particular harm (actually most are “plusses” for America), and keeping judges, lawyers, and reporters busy.

Can this Congress, even this GOP-controlled version, just stand by and let an incompetent Executive Branch run an important judicial system into the ground? Stay tuned.

Thanks to Nolan Rappaport for alerting me to this report.

PWS

06-11-17

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.

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

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

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

 

Keynote Address by

 

Paul Wickham Schmidt

 

United States Immigration Judge (Retired)

 

LIGHT OF LIBERTY AWARDS

 

Pennsylvania Immigration Resource Center

 

Heritage Hills Golf Resort

 

York, PA

 

JUNE 7, 2016

 

  1. I. INTRODUCTION

 

 

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

 

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

 

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

 

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

 

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

 

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

 

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

 

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

 

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

 

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

 

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

 

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

 

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

 

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

 

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

 

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

 

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

 

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

 

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

 

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

 

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

 

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21st Century immigration judiciary.

 

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

 

III. ACTION PLAN

 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

 

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

           

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

           

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

          

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

 

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

 

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

 

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

 

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

           

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

           

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

 

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

 

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

 

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

 

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

 

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

            Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

 

(06-08-17)

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

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

 

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

 

 

 

 

 

 

 

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself.  So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

 

 

 

 

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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

Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.”  Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

 

 

POLITICO Covers “Under The Radar” Joint Departures Of EOIR’s Top Execs!

Subject: POLITICO’s Morning Shift: U.S. visas down for Muslim-majority countries — Immigration court chiefs leave — Democrats make minimum wage pledge

By Ian Kullgren | 05/26/2017 10:04 AM EDT

With help from Bianca Padró Ocasio, Ted Hesson and Mel Leonor

U.S. VISAS DOWN FOR MUSLIM-MAJORITY COUNTRIES: “President Donald Trump’s ‘Muslim ban’ may be tied up in court, but newly released figures show his administration is issuing fewer visas to visitors from Arab and Muslim-majority countries,” POLITICO’s Nahal Toosi and Ted Hesson report.

“Data posted online this week by the State Department showed that non-immigrant visas granted to people from nearly 50 Muslim-majority countries were down almost 20 percent in April compared to the 2016 monthly average,” they write. “When only Arab countries were considered, non-immigrant visas were down nearly 30 percent in April compared to the 2016 monthly average. Visas issued to the six countries targeted by Trump’s March 6 travel ban – Iran, Syria, Sudan, Somalia, Libya and Yemen – declined even further, down 55 percent compared to the 2016 monthly average.”

“Stephen Pattison, an immigration lawyer in Maryland who spent nearly three decades as a State Department consular officer, said he thinks Trump policies are having a ‘chilling effect’ on travel to the United States from Muslim nations…. ‘Some people may have canceled trips,’ Pattison said. ‘Some people may have traveled last year but not this year. But I think it would be naive to assume that’s what’s going on in Washington isn’t having an effect on consular adjudications.'” More here.

GOOD MORNING. It’s Friday, May 26, and this is Morning Shift, POLITICO’s daily tipsheet on employment and immigration policy. Send tips, exclusives, and suggestions to thesson@politico.com, mlevine@politico.com, mleonor@politico.com, ikullgren@politico.com and tnoah@politico.com. Follow us on Twitter at @tedhesson, @marianne_levine, @melleonor_, @IanKullgren, and @TimothyNoah1.

PROGRAMMING NOTE – Due to the Memorial Day holiday, Morning Shift will not publish on Monday, May 29. Our next Morning Shift will publish on Tuesday, May 30. Please continue to follow Pro Employment and Immigration issues here.

IMMIGRATION COURT CHIEFS LEAVE: The director and deputy director of the federal immigration courts will leave the office by the end of the month, two sources familiar with the situation told Morning Shift. The courts, known as the Executive Office for Immigration Review, fall under the purview of the Justice Department.

Director Juan Osuna and Deputy Director Ana Kocur announced their departures in a staff-wide email. The reasons for their resignations are unclear, but both assumed their positions during the Obama administration, Osuna in 2011 and Kocur in 2012. Neither EOIR nor the Justice Department responded to requests for comment.

Attorney General Jeff Sessions has promised immigration enforcement will be a centerpiece of his approach to criminal justice, and the next director will be under pressure to speed up deportations and clear the immigration case backlog, currently at nearly 586,000 cases, according to the Transactional Records Access Clearinghouse at Syracuse University.

Jeremy McKinney, a liaison to the office for the American Immigration Lawyer’s Association, said Osuna oversaw the courts during a difficult period. “He was dealing with very limited resources,” McKinney said. The next director will have more, if the Trump administration gets its way. The White House budget proposal released this week called for the hiring of an additional 75 immigration judges and roughly 375 support personnel.

DEMOCRATS MAKE MINIMUM WAGE PLEDGE…: First 100 days? Old hat. House Minority Leader Nancy Pelosi said Thursday that Democrats would take up a measure to raise the minimum wage within the first 100 hours after they regain the majority, assuming they win it back in next year’s election. (That’s a pretty big if.) Pelosi made the pledge alongside a handful of other Democratic lawmakers and Sen. Bernie Sanders (I-Vt.) as they announced legislation to raise the hourly minimum wage to $15, up from the current $7.25, by 2024.

Democrats are making the pledge part of their campaign strategy for 2018. But even if they fulfill it, don’t hold your breath for it to be signed into law so long as Trump is in the White House. Even many Democrats, Hillary Clinton included, favored an increase only to $12 as recently as last year. Trump proposed an increase to $10 during the campaign, but only after previously suggesting no increase (and even calling into question whether the federal government should set an hourly minimum at all). Trump hasn’t touted the $10 proposal since, and he seems unlikely to. POLITICO’s Elana Schor writes that the Democrats’ embrace of $15 demonstrates the influence that Sanders and the left wing of the Democratic party now wield. More here.

… AND REPUBLICANS FIGHT BACK: Also on Thursday, Rep. Phil Roe (R-Tenn.) and half a dozen other Republicans re-introduced legislation to overhaul the National Labor Relations Act to weaken unions’ influence. The so-called Employee Rights Act would allow union members and nonmembers alike to withhold that portion of dues or fees that supports political activities by a union that bargains collectively on their behalf. The bill would also require union locals to conduct a recertification election every year; forbid union leaders from calling a strike without a vote of their members; and criminalize coercion by union leadership (though the violent threats that provision is aimed at are already covered by existing laws). “The rights of American workers were under attack during the Obama presidency,” Roe said in a written statement, “and it is time to restore those rights and work to foster a pro-growth, pro-employee environment.”

Republicans introduced similar legislation three times while President Barack Obama was in office, Sean Sullivan writes in the Washington Examiner. But it isn’t clear that Trump, who has tried to cast himself as a friend to unions, would support the bill. During the election, Trump’s campaign resisted efforts to be pinned down. More here.

DURING SCHOOL HOURS? A Louisiana charter school, International High School of New Orleans, needs to make a dozen modifications to its employee handbook to comply with federal labor laws – including axing a policy that prohibits teachers from using social media during school hours. An administrative law judge ruled Wednesday that the policy runs afoul the National Labor Relations Act. The judge also took issue with a policy that prohibits teachers from using school computers to access social media websites, and another that prohibits teachers from conducting personal business during school hours. The ruling touches on two issues of contention between charter school advocates and unions: whether unions belong in charter schools, and whether charter schools are sufficiently “private” to fall under the jurisdiction of federal labor law. Read the ruling here.

A CASE AGAINST PLAs: Ohio schools built under government-mandated project labor agreements cost 13.12 percent more than schools that were built through competitive bidding, according to a new study by Beacon Hill Institute commissioned by the Associated Builders and Contractors. The study, which looked at schools built since 2000, calculated that PLA constructions cost $23.12 more per square foot than their non-PLA counterparts. Read the study here.

HOGAN TO VETO PAID LEAVE BILL: Maryland Gov. Larry Hogan will veto a paid leave bill that would have given workers in that state five days’ annual paid sick leave. The bill covered all employers of at least 15 workers, but the Republican governor, who proposed addressing paid sick leave with incentives for employers, called it “simply very bad policy.” Hogan said he plans to issue a series of executive orders relating to paid sick leave, including the creation of task force to study the issue. He also plans to mandate paid sick leave for contract employees of the state’s executive branch. Democrat lawmakers will try to override the veto. More from the Baltimore Sun here.

UNIONS SUE TO BLOCK KENTUCKY RIGHT TO WORK LAW: “Organized labor struck back Thursday against Kentucky’s right-to-work law, filing a lawsuit that claims the ban on mandatory union fees in workplaces violates the state’s Constitution,” the Associated Press reports. “The Kentucky State AFL-CIO and Teamsters Local 89 filed the suit, which asks a judge to temporarily block the right-to-work law while the suit proceeds. The labor groups said the law should be struck down for violating numerous sections of the Kentucky Constitution.” More here.

INDY MAY HOLD OFF ON MINIMUM WAGE HIKE: “Indianapolis Mayor Joe Hogsett is urging the City-County Council to hold off on setting a $13-an-hour minimum wage for staff while his office works to eliminate the city’s structural deficit,” James Briggs writes for the Indy Star. “Hogsett on Wednesday said he does not support immediate passage of Proposal 92, which would raise wages for 365 city and county workers who earn between $9.13 per hour and $12.98 per hour.” More here.

ICE ARRESTS NEARLY 200 IN LA: ICE is touting the arrests of 188 undocumented immigrants in the Los Angeles area during a five-day “expanded enforcement” operation that captured a “convicted rapist and a previously deported cocaine trafficker,” ICE said in a written statement Thursday. In addition to identifying where each arrest took place, the ICE statement identified the types of previous criminal convictions and each person’s country of origin.

“Since President Trump signed the Executive Orders regarding immigration enforcement priorities,” ICE said, “ICE has arrested more than 41,000 individuals nationwide who are either known or suspected of being in the country illegally, a nearly 40 percent increase over the same period in 2016.”

COFFEE BREAK:

– “Restaurant: ICE Agents Ate Breakfast Then Detained Employees,” from The Daily Beast

– “Bice: Sheriff Clarke directed staff to hassle plane passenger after brief exchange,” from the Milwaukee Journal Sentinel

– “Appeal says ruling that vindicated San Diego pension reform could create statewide problems,” from the San Diego Union-Tribune

– “Labor union calls on Harley-Davidson to abandon plan to build overseas plant,” from the Milwaukee Business Journal.

– “Elgin to opt out of Cook County minimum wage, sick leave requirements,” from The Chicago Tribune.

– “Editorial: Don’t tinker with teacher pensions,” from The Detroit Free Press

– “Mass. House Lawmakers Postpone Vote On Bill Aimed At Countering Trump’s Immigration Crackdown,” from WBUR

THAT’S ALL FOR MORNING SHIFT.

To view online:
http://www.politico.com/tipsheets/morning-shift/2017/05/26/us-visas-down-for-muslim-majority-countries-220535

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Thanks to the always wonderful Bianca Padró Ocasio for sending this item my way!

In my experience, it’s somewhat unusual for the top two career Senior Executives in an agency to depart simultaneously unless they are headed to the same place, which does not appear to be the case here. It’s also somewhat remarkable in light of both Osuna’s and Kocar’s fairly lengthy and very distinguished service to EOIR and the DOJ (Osuna was a Member, Vice Chair, and Chair at the BIA, and a Deputy Assistant Attorney General in the Civil Division, prior to becoming Director) that no official press release on the departures has been issued, and that both EOIR and DOJ refuse to comment. Usually, even when civil servants are effectively “forced out,” the Department gives them a “pat on the back” and “thanks for the service.”

Some have speculated that with AG Sessions’s overriding interest in immigration enforcement, EOIR will be more “directly controlled” by either the Deputy Attorney General or assistants to the Attorney General in the future. Another possibility is that Sessions will appoint a trusted member of his staff to serve as Director. My recollection is that while the Director is not a Presidentially appointed position, it can be filled by either a career or a non-career (i.e., political) SES appointment.

Stay tuned!

Have a great Memorial Day holiday.

PWS

05-26-17


TRAC: U.S. Immigration Court Backlog Careens Toward 600,000 — No End In Sight!

==========================================
Transactional Records Access Clearinghouse
==========================================FOR IMMEDIATE RELEASEGreetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.

These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.

How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.

These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:

http://trac.syr.edu/immigration/reports/468/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

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

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

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://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 U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://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
_______________________________________________

Thanks to Dan Kowalski of LexisNexis for bringing this to my attention.
Just hiring more U.S. Immigration Judges will not solve this problem. There is a huge mismanagement issue at the U.S. Department of Justice!
PWS
05-16-17

Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. Its an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

Now, this is when I used to give my comprehensive disclaimer providing plausible deniabilityfor everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that Im retired, we can skip that part.

My speech is entitled: Life At EOIR, Past Present, and Future.I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court systems vision, the judges role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

CAREER SUMMARY

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (BIA) at the U.S. Department of Justice (“DOJ”) under the Attorney Generals Honors Program. Admittedly, however, the BIAs Executive Assistant culled my resume from the Honors Program reject pile.One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to todays cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (OIL) in the DOJs Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA.

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a naturalized citizen who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel.   I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.

Not long after I arrived, the General Counsel position became political. The incoming Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and colleague David Crosland, now an Immigration Judge in Baltimore, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.

The third General Counsel that I served under was one of my most unforgettable characters:the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as Iron Mike.His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. As my one of my colleagues said of Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a good cop, bad coproutine, and Ill let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (OIL), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).

I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at todays DOJ arent able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsels Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

In 1987, I left INS and joined Jones Days DC Office, a job that I got largely because of my wife Cathy and her old girl network.I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA with which some of you might be familiar.

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. You will note that immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (AILA) on a number of projects and was an adviser to the LawyersCommittee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didnt always agree with our decisions and vice versa.

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying equal justice for allthat she worked into almost all of her speeches, and which I found quite inspirational. She was also hands down the funniest former Attorney General to appear on Saturday Night Live,doing her famous Janet Reno Dance Partyroutine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerks Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a Plain Language Awardfrom then Vice President Gore.

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is persecution” for asylum purposes.[2] As another historical footnote, the losingattorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally losingthe case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga. Without Davids help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30 of last year. So, Im one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didnt recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

I have also taught Immigration Law at George Mason School of Law in 1989 and Refugee Law and Policyat Georgetown Law from 2012 through 2014. Ive just agreed to resume my Adjunct position with Georgetown Law for a compressed summer course” in “Immigration Law & Policy.

Please keep in mind that if everyone agreed with me, my career wouldnt have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldnt have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences.   I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical. 

THE DUE PROCESS VISION

Now, lets move on to the other topics: First, vision.   The “EOIR Vision” is: “Through teamwork and innovation, be the worlds best administrative tribunals, guaranteeing fairness and due process for all.In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for alltheme.

Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future.   There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administrations many pronouncements on immigration.

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer. Individuals who cant afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called vulnerable populationscontinue to challenge our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low cost lawyers available to handle the overwhelming need. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech Im going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: Whats it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.  

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what its like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.”[5]

My Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judges life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times weve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: [I]mmigration judges often feel asylum hearings are like holding death penalty cases in traffic court.’”[7]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous well-founded fearstandard for asylum, while I helped the Solicitor Generals office develop the unsuccessful opposing arguments for INS.[8] Therefore, I sometimes refer to Judge Marks as one of the founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this age of the Internet.His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the performing artistaspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judges job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Courts amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, to make the judge look smart,no matter how difficult or challenging that might be in a particular case.  

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system due process in action but they teach exactly the type of intellectual and practical values and skills that I have just described.

RECLAIMING THE VISION

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t comemessages to asylum seekers, which are highly ineffective in any event, must end. Thats unlikely to happen under the DOJ as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised prioritizationand attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call aimless docket reshuffling— “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.  

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the prioritytargets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded immigration detention empire,likely to be situated in remote locations near the Southern Border, relying largely on discredited private for profitprisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called expedited removal,thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we dont want youmessage to asylum seekers.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.  

If there are to be nationwide policies and practices, they should be developed by an Immigration Judicial Conference,patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary consumersof the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.  

In particular, the judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds particularly those with expertise in asylum and refugee law have been so few and far between. Indeed, during the last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney Generals Sessions came from a private sector background.

Fourth, I would repeal all of the so-called Ashcroft reformsat the BIA and put the BIA back on track to being a real appellate court.   A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.

Nearly a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015!   An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. [13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.[15]    

Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted.   We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to files in the aisles,misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an amateur nightaura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court. 

GETTING INVOLVED 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.       

They form what I call the New Due Process Army!And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of guaranteeing fairness and due process for all!        

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.     

And the situation is getting worse. With the Administrations expansion of so-called expedited removal,lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to movecases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

I have been working with groups looking for ways to expand the accredited representativeprogram, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The accredited representativeprogram is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.        

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, big lawfirms were some of the major contributors to highly effective pro bono representation. It was also great hands onexperience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants.   I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be informed consumersof legal services.        

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals. 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called comprehensive immigration reformis simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. Its time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

CONCLUSION

In conclusion, I have introduced you to one of Americas largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Courts noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!        

Thanks again for inviting me and for listening. Have a great conference!

 

 

(05/12/17)

        

 

 

 

 

 

[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

[14] See 8 C.F.R. § 1208.13(b)(1).

[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?”   Does this represent the best that American justice has to offer?

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