Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: National Association of Immigration Judges
At a recent Center for Immigration Studies panel discussion on the backlog, Judge Larry Burman said, “I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”
By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.
. . . .
If Trump relies on hiring more IJs to deal with the backlog crisis, his enforcement program will be a dismal failure.
His only viable alternative is to reduce the size of the immigration court’s docket, which he can do by promulgating regulations making IJ hearings unavailable to aliens whose cases can be handled in expedited removal proceedings.
He seems to have had this in mind when he directed DHS to use expedited removal proceedings to the full extent authorized by law, which would include most of the undocumented aliens in the United States who were not lawfully admitted, unless they can establish that they have been here for two years.
In expedited removal proceedings, which are conducted by immigration officers, aliens can be deported without IJ hearings unless they have a credible fear of persecution. If they establish a credible fear of persecution, they are entitled to an asylum hearing before an IJ.
But would the courts stop him?”
Go on over to The Hill at the link to read Nolan’s complete article.
Expedited removal is the wrong solution to the Immigration Court backlog!
As I have noted in recent blogs, recent studies show that Immigration Court hearings area already falling substantially short of providing real due process because of lack of available counsel and overuse of immigration detention. Expedited removal would aggravate that problem tenfold.
Expedited removal couldn’t begin to solve the current backlog problems because the vast majority of the estimated 11 million individuals already here have been here for more than two years and can prove it, most from Government records. Indeed, I’d wager that the vast majority of individuals in Removal Proceedings in U.S. Immigration Court have had their cases pending for two or more years.
The problems in Immigration Court were caused by “Aimless Docket Reshuffling”by the last three Administrations emanating from undue political influence from the Department of Justice, DHS, and the White House. Only an independent Immigration Court that places control of the dockets in individual Immigration Judges, where it belongs, can address those problems.
The answer to hiring problems resulting from poor management and political hiring from the DOJ is certainly not to “get rid of” any existing U.S. Immigration Judges. Whether the hiring was done properly or not, there is no reason to believe that any of the currently sitting local U.S. Immigration Judges did anything wrong or participated in the hiring process other than by applying for the jobs. The system needs all the experienced judges it currently has.
The problem of inconsistency will only be solved by having an independent BIA that acts in the manner of an independent appellate court, cracking down on those judges who are not correctly applying legal standards. That’s how all other court systems address consistency issues — through precedent and independent appellate review. Numerous examples have been documented of Immigration Judges in courts like Atlanta, Stewart, and Charlotte, to name three of the most notorious ones, improperly denying asylum claims and mistreating asylum applicants. The BIA has failed to function in a proper, independent manner ever since the “Ashcroft Purge.” The only way to get it doing its job is by creating true judicial independence.
“Haste makes waste” is never the right solution! It’s been done in the past and each time has resulted in increased backlogs and, more importantly, serious lapses in due process.
The docket does need to be trimmed. The Obama Administration was at least starting the process by a more widespread use of prosecutorial discretion or “PD” as in all other major law enforcement prosecutorial offices. Most of the individuals currently in the country without status are assets to the country, who have built up substantial equities, and do not belong in removal proceedings. No system can function with the type of unregulated, irrational, “gonzo” enforcement this Administration is pursuing.
The reasonable solution is to do what is necessary to build a well-functioning system that provides due process efficiently, as it is supposed to do.The elements are reasonable access to lawyers for everyone in proceedings, reducing expensive, wasteful, and fundamentally unfair use of detention, better merit hiring and training procedures for Immigration Judges, modern technology, better use of prosecutorial discretion by the DHS, legislation to grant legal status to law-abiding productive individuals currently present in the US without status, and a truly independent judicial system that can develop in the way judicial systems are supposed to — without political meddling and without more “haste makes waste” schemes like “expedited removal!”
“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.
His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.
Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”
But Siagha’s access to a lawyer in immigration court is the exception.
There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.
But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.
The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.
According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.
So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)
Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.
As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.
The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.
From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.
But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.
This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”
I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”
Read Dara’s full article at the link.
No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.
I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.”Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.
I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)
When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.
That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.
By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!
In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.
No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.
The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.
Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.
I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.
Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!
EOIR recently announced its intent to subject immigration judges to tiered performance reviews. Most notably, EOIR plans to impose case completion quotas on the individual judges. The American Bar Association, American Immigration Lawyers Association (AILA) and the National Association of Immigration Judges (NAIJ) were among the many organizations to express their strong objection to the proposal.
Immigration judges have always been exempt from the tiered reviews that other Department of Justice attorneys undergo each year. The Office of the Chief Immigration Judge deserves credit for understanding that it is not possible to impose any type of review criteria without impeding on judges’ neutrality and independence. To begin with, how many cases should a judge complete in a given period of time? Are the judges with the most completions affording due process to the respondents? Are they identifying all of the issues, spending enough time reviewing the records, and giving proper consideration and analysis to the facts and the law? Do their decisions provide sufficient detail for meaningful review? Are those at the other end of the scale completing less cases because they are working less hard, or to the contrary, because they are delving deeper into the issues and crafting more detailed and sophisticated decisions? Or is it because they are granting more continuances out of a sense of fairness to the parties, or to allow further development of the record in order to allow for a more informed decision? And regardless of the reasons, might they be prejudicing some respondents by delaying their day in court? How would management turn all of these factors into an objective grade?
In terms of completion quotas, all cases are not equal. A respondent who has no relief and simply wants to depart can have his or her case completed in minutes, whereas a respondent seeking relief in New York will presently be scheduled for a merits hearing in the Spring of 2020, at which time the lengthy testimony of multiple witnesses, disputes over the admissibility of evidence, the need to wait for DHS to adjudicate pending petitions for relief, etc. might result in months or even years of additional continuances. Decisions in some cases are delivered orally in just a few sentences; others require 25 written pages. Yet all count the same in EOIR’s completion ledger.
I am pretty certain that the move for tiered review is not coming from the Office of the Chief Immigration Judge, but from higher up – either the new Acting Director of EOIR, or Main Justice. Even under more liberal administrations, the Department of Justice never really understood the IJs, who are the only judges within a predominantly enforcement-minded department. The need for neutrality and fairness is further lost on the present Attorney General, who has made his anti-immigrant agenda clear. IJs are in an interesting position: they represent the Attorney General (i.e. are acting as the AG’s surrogates, where the statute delegates authority to make determinations or grant relief to the AG). Yet in spite of such posture, IJs often reach decisions that are at odds with the AG’s own views. For example, does Jeff Sessions, who last month issued a memo allowing discrimination against LGBTQ individuals under the guise of protecting the discriminators’ “religious liberty,”, approve of his immigration judges granting asylum claims based on sexual orientation or sexual identity? In light of Sessions’ recent charges of widespread asylum fraud, does he agree with his judges’ high asylum grant rates?
It is probably this tension that provides the impetus for the Department’s present proposal. The tiered criteria and completion quotas are likely designed to pressure judges with more liberal approaches into issuing more removal orders. They would also provide the department with a basis to take punitive action against judges who resist such pressures. Given the high percentage of immigration judges who are retirement eligible, the department might be counting on judges targeted under the new review criteria to simply retire, allowing them to be replaced with more enforcement-minded jurists.
It should be noted that the changes are at this point proposals. The immigration judge corps is represented by a very effective union. As the present leadership within the Office of the Chief Immigration Judge is fair minded, there is hope that reason will prevail. However, in a worst-case scenario in which the plan is implemented, what should immigration judges do?
Having worked both as an IJ and a BIA staff attorney subjected to both quotas and tiered review, I can state that there are big differences. BIA staff attorneys draft decisions that Board members then have to approve, whereas immigration judges are in complete control of the case outcome. Furthermore, unlike BIA attorneys who are dealing with records of completed decisions, immigration judges are conducting proceedings in which the protection of due process must be safeguarded above all, as the Chief Immigration Judge pointed out in her July 31, 2017 memo on continuances. Circuit courts are not going to excuse due process violations because immigration judges have to meet arbitrary completion goals.
Although the intent may be to create more removal orders, completion quotas can prove to be a two-edged sword. Should the ICE attorney not have the file at the first Master Calendar hearing, or should they lack a certified copy of the conviction record or proof of service of the NTA, will the IJ feel compelled to terminate proceedings (which constitutes a completion) rather than grant the government a continuance? Many hearings turn on credibility findings, but credibility findings take time to get right. The Second Circuit, for example, has held that an immigration judge should probe for additional details to clear up doubts about credibility.1 As Deborah Anker has pointed out in her Law of Asylum in the United States, “Federal courts have overturned adverse credibility findings where an immigration judge has interrupted an applicant repeatedly, rushed the hearing, and then criticized an applicant’s testimony for lacking specificity.”2 But won’t completion quotas likely encourage exactly such prohibited behavior? In order to avoid reversal on appeal, judges who are forced to rush or curtail hearings will may need to give the benefit of the doubt to respondents and find them credible. Additionally, judges may no longer be able to continue cases to allow DHS to subject documents to forensic examination, or to conduct consular investigations in the applicants’ home countries. Under pressure to complete cases, judges may be forced to credit witness affidavits as opposed to allowing DHS to subject those witnesses to cross-examination.
For the above reasons, it is not impossible that completion quotas might actually result in more grants of relief and terminations of proceedings, resulting in fewer removal orders. Like so many of the poorly thought out policies of the current administration seeking to erode individual protections, completion quotas (if implemented) may just be the latest that will fail to achieve its intended result. The proposal provides further evidence of the need for a truly independent immigration court.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
1. Yang v. Board of Immigration Appeals, 440 F.3d 72, 74 (2d Cir. 2006).
2. Anker, Law of Asylum in the United States (2017 Edition) at 199.
Thanks, Jeffrey! Performance standards for Immigration Judges are a complete waste of time, an improper intrusion into judicial independence, and a diversion of time and energy from solving the many real problems facing this system — most of which relate to the DOJ and the untenable administrative structure of the U.S. Immigration Courts, not the individual IJs.
Congressional Quarterly reports that Acting EOIR Director James McHenry will testify before the Immigration and Border Security Subcommittee Chaired by Chairman Raul R. Labrador, R-Idaho, at 2 p.m. in Room 2141 of the Rayburn House Office Building on Wednesday, Nov. 1. According to CQ, he is expected to address backlogs, hiring, and other issues facing the U.S. Immigration Courts.
“Washington (CNN)One of the Trump administration’s top immigration policy staffers is leaving the Department of Homeland Security to join the attorney general’s office at the Department of Justice — reuniting him with Jeff Sessions.
Gene Hamilton, a senior counselor to the Homeland Security secretary since January and top immigration policy expert for the administration, confirmed the move to CNN.
Hamilton’s departure will be a blow to Homeland Security’s policy shop, sources familiar with the situation said. The agency is tasked with managing the vast majority of the administration’s immigration portfolio.
But the move will reunite Hamilton, a former Sessions staffer, with the Cabinet’s strongest immigration policy hardliner, an early supporter of President Donald Trump who has been a key proponent of his aggressive immigration agenda from his perch at DOJ.
Hamilton was a general counsel for Sessions on Capitol Hill and will work directly with the attorney general in his new role. The switch is tentatively expected to begin next week, the sources said.
. . . .
While the move would take Hamilton out of the development of DHS immigration policies, where the secretary’s office oversees components including Immigration and Customs Enforcement, Customs and Border Protection and US Citizenship and Immigration Services, DOJ under Sessions has been taking a stronger role in immigration policy during this administration.
Sessions himself remains a thought leader in the administration on the tough immigration agenda of the President, and DOJ manages the nation’s Immigration courts.
Justice also is charged with representing the government in litigation — which would include all the sanctuary cities litigation, DACA lawsuits and ongoing travel ban litigation.“
Read Tal’s complete report at the link.
With the DOJ abandoning the last pretenses of objectivity and assuming the “point position” on the Administration’s xenophobic anti-immigrant agenda, how could Immigration Courts held “captive” within the DOJ possibly provide individuals with the “fair and unbiased decision-making” required by the Due Process Clause of our Constitution? Only an independent Article I Court can save this deeply compromised system!
ATTORNEY GENERAL Jeff Sessions decried the state of the immigration courts in remarks Oct. 12 before the Justice Department’s Executive Office for Immigration Review, lamenting “rampant abuse and fraud” in asylum applications. As part of Mr. Sessions’s push for an overhaul of the immigration system, the department also plans to begin evaluating immigration judges on the basis of how many cases they resolve. This proposal would do little to fix the United States’ backlogged immigration courts and much to undermine their integrity.
The Trump administration hinted at the plan in a wish list of immigration policies, alongside commitments to constructing President Trump’s promised border wall and withholding federal grants from so-called sanctuary cities. According to reporting by The Post, government documents show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.” Such a metric would probably involve assessing judges based on how many cases they complete or how quickly they decide them — a plan that the National Association of Immigration Judges has called a “death knell for judicial independence.”
Unlike other federal judges, immigration judges are technically Justice Department employees. Currently, the collective bargaining agreement between Justice and the judges’ association forbids evaluating judges based on quotas. But the association says the Executive Office of Immigration Review is working now to remove that language from the contract.”
Note the “progression” by the DOJ: From “performance evaluations would interfere with judicial independence,” to “performance evaluations won’t involve production quotas,” to “judges are just ‘oyster shuckers in robes!'”
Performance evaluations by the DOJ are just as inappropriate and unnecessary for U.S. Immigration Judges now as they were back in 1983 when EOIR was established. The only difference is the plan by Sessions and his politico cronies to co-opt the U.S. Immigration Courts and use them as an enforcement tool in his xenophobic crusade against immigrants, asylum seekers, due process, and the American justice system.
I actually was part of the NAIJ “negotiating team” that negotiated the current procedures and standards for judicial performance evaluations. We were assured over and over by “EOIR Management” that “case quotas” were not part of the plan and that “management recognized” the need for decisional independence in the Immigration Judge corps.
HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES (FULL DISCLOSURE: I am a Retired Member of the NAIJ)
NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017
“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.
Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.
While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court
The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.
NAIJ CONCERNS RE QUOTAS
AILA Doc. No 17102062. (Posted 10/20/17)
We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.
We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.
FOR ADDITIONAL INFORMATION, CONTACT
THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th Floor
Los Angeles, CA 90014 (310)709-3580 firstname.lastname@example.org www.naij-usa.org
Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges
“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.
16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.
17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)
18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”
Read this entire memorandum at the following link:
Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.
As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.
This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”
If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.
If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.
The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.
The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”
Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”
The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.
It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.
The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.
How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process
When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?
Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.
In U.S. Government parlance, there’s a term for that: fraud, waste, and abuse!
“The Trump administration is taking steps to impose “numeric performance standards” on federal immigration judges, drawing a sharp rebuke from judges who say production quotas or similar measures will threaten judicial independence, as well as their ability to decide life-or-death deportation cases.
The White House says it aims to reduce an “enormous” backlog of 600,000 cases, triple the number in 2009, that cripples its ability to deport immigrants as President Trump mandated in January.
The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.
“That is a huge, huge, huge encroachment on judicial independence,” said Dana Leigh Marks, spokeswoman and former president of the association and a judge for more than 30 years. “It’s trying to turn immigration judges into assembly-line workers.”
The White House tucked its proposal — a six-word statement saying it wants to “establish performance metrics for immigration judges” — into a broader package of immigration reforms it rolled out Sunday night.
But other documents obtained by The Washington Post show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.”
The Justice Department, which runs the courts through the Executive Office for Immigration Review, declined to comment or otherwise provide details about the numeric standards.
The Justice Department has expressed concern about the backlog and discouraged judges from letting cases drag on too long, though it has insisted that they decide the cases fairly and follow due process. On Thursday, Attorney General Jeff Sessions expressed concern that false asylum cases are clogging up the courts.
The judges’ union says its current contract language prevents the government from rating them based on the number of cases they complete or the time it takes to decide them.
But now, they say, the department is trying to rescind that language, and advocates say it could violate a federal regulation that requires judges to “exercise their independent judgment and discretion” when deciding cases.
Advocates and immigration lawyers say imposing numerical expectations on judges unfairly faults them for the massive backlog. Successive administrations have expanded immigration enforcement without giving the courts enough money or judges to decide cases in a timely way, they say. An average case for a non-detained immigrant can drag on for more than two years, though some last much longer.
“Immigration judges should have one goal and that goal should be the fair adjudication of cases,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services and advocacy to immigrants nationwide. “That’s the only metric that should count.”
Immigration lawyers say the proposed standards risk adding to disadvantages immigrants already face in immigration courts. Most defendants do not speak English as their first language if at all, are not entitled to lawyers at the government’s expense, and thousands end up trying to defend themselves.
Often immigrants are jailed and given hearings in remote locations, such as rural Georgia or Upstate New York, which makes it difficult to gather records and witnesses needed to bring a case.
“People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” said Gregory Chen, director of government relations for the American Immigration Lawyers Association, which has 15,000 members.
Traditional federal judges are not subject to quotas.
The rare public dispute between the immigration judges and the Justice Department comes as the Trump administration is demanding a commitment to increased enforcement and other immigration restrictions in exchange for legal status for 690,000 young undocumented immigrants who, until recently, were protected from deportation under an Obama-era program. Sessions announced the end of the program last month, and the young immigrants will start to lose their work permits and other protections in March.
In January, Trump issued a slate of executive orders that sought to crack down on immigration. He revoked President Barack Obama’s limits on enforcement and effectively exposed all 11 million undocumented immigrants in the United States to arrest.
On Sunday, Trump also called for more immigration-enforcement lawyers and more detention beds, which would further increase the caseloads of the courts.
The big stories and commentary shaping the day.
He is also planning to seek congressional funding for an additional 370 immigration judges, which would more than double the current number.
Immigration arrests are up more than 40 percent since Trump took office, and deportation orders are also rising. From Feb. 1 to August 31, judges have issued 88,383 rulings, and in the majority of cases — 69,160 — immigrants were deported or ordered to voluntarily leave the country, a 36 percent increase over the corresponding period in 2016.
The immigration courts have clamored for greater independence from the Justice Department for years and also have sought greater control over their budget. They have long complained about a lack of funding, burnout rates that rival that of prison wardens, and caseloads exceeding 2,000 each. Some judges are scheduling cases into 2022.
On Sunday, Sessions — who appoints the immigration judges and is the court’s highest authority — called the White House’s broad immigration proposals “reasonable.”
“If followed, it will produce an immigration system with integrity and one in which we can take pride,” he said.”
Will the stunningly xenophobic “Gonzo Apocalypto” get away with his lawless plan to strip migrants of the last vestiges of their already restricted Constitutional rights to due process? Or, will the Article III Courts step in, assert themselves, insist on due process and fair and impartial adjudication in Immigration Court, and throw the already staggering Immigration Court System into complete collapse, thereby stopping the “Removal Railway?”
The showdown is coming. I think the eventual outcome is “too close to call.” So far, Sessions is well on his way to co-opting the Immigration Court as just another “whistle stop on the Removal Railway!”
The current backlog has multiple causes: 1) failure of Congress and the DOJ to properly fund and staff the U.S. Immigration Courts; 2) poor enforcement strategies by DHS resulting in too many “low priority” cases on the dockets; 3) often politicized, always changing, sometimes conflicting “case priorities and goals” established by DOJ and EOIR; 4) lack of authority for Immigration Judges to control their own dockets; 5) outdated technology resulting in a “paper heavy” system where documents are often misfiled or missing from the record when needed by the Judges; and 6) “Aimless Docket Reshuffling” caused by moving cases around to fit DHS Enforcement priorities and ill-conceived and poorly planned details of Immigration Judges away from their normal dockets. “Productivity,” which consistently far exceeds the “optimal” 500 completions per Judge annually (currently approximately 770 per Judge) is not one of the primary factors causing the backlog.
Overall, the current backlog is the product of mismanagement of the Immigration Courts by the DOJ spanning multiple Administrations. No wonder the politos at the Sessions DOJ are trying to shift blame to the Immigration Judges, hapless migrants struggling to achieve justice in an “intentionally user unfriendly system,” and stressed out private attorneys, many serving pro bono or for minimal compensation. How would YOU like to be a migrant fighting for your life in a so-called “court system” beholden to Jeff Sessions?
We’re starting to look pretty “Third World.” Sessions and the rest of the “Trump Gang” operate much like corrupt Government officials in “Third World” countries where the rulers control the courts, manipulation of the justice system for political ends is SOP, and claims to aspire to “fairness” ring hollow.
As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court
By Chris Glorioso, Dave Manney, Erica Jorgensen and Evan Stulberger
Documents from the Trump administration show the president’s plan to ship more immigration judges for temporary assignments in border states is encountering a fundamental problem: there isn’t enough work for all the new judges to do.
According to an assessment of “Surge Hearing Locations,” dated April 4, 2017, the Department of Justice found six of the 17 immigration courts receiving transferred judges could not give those judges enough work to support a full docket.
INVESTIGATIVE’Phantom’ Judges Cause Confusion in NYC Immigration Court
In the assessment and supporting documents, DOJ staffers wrote about an immigration court in Karnes, Texas, where there was “concern regarding the lack of filings to sustain details from other courts”
Immigration: Crisis in the Courts
An overview on how immigration judges are struggling with a punishing backlog that in many cities is pushing cases far into the future, slowing deportations and leaving families in limbo.
The same assessment says another court in Texas’s Prairieland Detention Center “is not receiving enough cases to truly fill a docket or even come close to it.”
At the court inside Texas’s Dilly Family Residential Center, DOJ staffers wrote “the one judge detailed there is not occupied.”
At New Mexico’s Cibola County Detention Center, DOJ staffers found the caseload “has not been sufficient to keep the two immigration judges assigned to this docket occupied.”
Staffers also noted two empty courtrooms at New Mexico’s Otero immigration facility — and concluded there were “insufficient caseloads for further deployments.”
Scheduling records show the Justice Department repeatedly assigned five transferred judges to the immigration court in Louisiana’s LaSalle Detention Facility, even though an assessment of the court found “at this time there is not enough work for five judges. There is enough work for a reasonable docket and three judges.”
The report went on to conclude that inefficient transferring of detainees often means “there is very little work for a detailed judge to complete.”
In most cases, the transferred judges spend two weeks to a month hearing cases in out-of-state court.
The Department of Justice declined to comment for this story, but in response to a previous inquiry by Politico, an agency spokesman said “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process.”
While transferred judges may have had light workloads when they arrived in some of the border state courts, there is evidence the dockets they left behind suffered in their home courts.
A joint analysis by the News 4 I-Team and Telemundo 47 Investiga found case adjournments in New York City’s immigration court went up 276 percent — from an average of 139 adjournments in the three months before the judge transfers began, to 522 in the three months after judge transfers began.
Despite that, the Trump administration has increased its target from 50 judge reassignments, to at least 137 nationwide. Nineteen New York City immigration judges — more than half of the city’s 32-judge staff – participated in the temporary transfer program.
Olga Byrne, an advocate for refugees at Human Rights First, a nonprofit that represents asylum-seekers in court, said immigration attorneys at her organization have noticed the spike in adjournments and questioned whether judicial assignments border state assignments are worth the trouble.
“We’ve been in touch with a couple of judges who have expressed a lot of frustration about being sent to a detention center where they could take a long lunch break,” said Byrne. “They had only a few cases to consider for a whole week and yet they had to defer hundreds of cases from their docket in their home court.”
But it is clear the Trump Administration knew its decision to deploy more judges to border states would likely have negative impacts on dockets those judges leave behind in their home states.
In response to questions from U.S. Senate staffers, a DOJ memo concedes that “it is likely that the case backlog will increase for the locations from which an Immigration Judge is assigned.”
In New York City alone, there are more than 82,000 immigrants waiting for a court hearing. The average wait time is north of two and a half years. Nationwide, the immigration case backlog stands at more than 617,000.
Rep. Adriano Espaillat (D – Upper Manhattan), who came to America as an undocumented immigrant, said he fears the Trump administration is over-staffing border state courts to rapidly deport current border-crossers, while ignoring the population of non-detained immigrants who’ve been living and working in America’s big cities, hoping for a shot at citizenship for years.
“By shifting judges to the border, they are in fact maybe predicting that there will be lots of cases before them in those jurisdictions,” Espaillat said. “I am concerned this is part of a greater effort to put together a deportation machine – and proceed to arrest and deport thousands of people who are undocumented.”
This isn’t the first time a presidential initiative has been criticized for mucking up immigration court schedules and exacerbating the nationwide case backlog.
During the Obama Administration, the Justice Department launched an effort to prioritize court hearings for unaccompanied minors who enter the country illegally.
Byrne says that too was a political decision which negatively impacted the court’s ability to handle thousands of older cases languishing in the backlog.
“It’s not a new thing that they are basically fulfilling political objectives with the way that the immigration court dockets are managed,” Byrne said. “I think we should be equally critical of both [the Trump and Obama administrations] for using the immigration court to fulfill political objectives rather than focusing on making that court system work well and efficiently.”
Source: I-Team: Immigration Judges Sent to Courts With ‘Very Little Work’ – NBC New York http://www.nbcnewyork.com/investigations/Immigration-Court-New-York-Judge-Investigation-448498463.html#ixzz4uXiMR2xJ
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To put this in context, during this massive abuse of the US Immigration Courts at the direction of Sessions and his incompetent politicos at the DOJ, the Chief Immigration Judge issued the notorious “Continuance Policy.” That document not not very subtilely implied that unjustified continuance requests by private attorneys (all of them overburdened by the effects of ADR, and many working on a pro bono or “low bono” basis) and laxity in granting continuances by overwhelmed and demoralized U.S. Immigration Judges were major contributing factors in increasing backlogs. Nothing could be further from the truth!
In fact, conscientious Immigration Judges and dedicated private attorneys are the only ones trying to make this broken system work and to maintain at least a semblance of due process. Their main obstacles: improper politically-motivated interference from the DOJ and poor administration and failure to stand up to the politicos by out of touch bureaucrats at EOIR Headquarters in Falls Church who are afraid to “blow the whistle”because they value their jobs over due process.
What kind of incompetents would draw the bulk of unneeded judicial details from what are known to be the most seriously backlogged Immigration Courts in the US, such as New York and Arlington? What type of incompetents would “study” the impact and need for the details after the fact, rather than carefully planning in advance? Assuming they were necessary (which they weren’t) why weren’t judicial details drawn from among the Assistant Chief Immigration Judges in Falls Church Headquarters who are never assigned actual cases? They, actually have time on their hands. And why does a system in crisis with inept management have highly-paid bureaucratic administrators like the ACIJs who never do any real judging? What makes a person a “judge”if he or she never “judges” anything?
Yes, as I’ve stated before, the Obama Administration enforcement policies and political interference from the Obama DOJ helped drive the backlogs to new heights. But, after taking over an obviously broken system, rather than doing the right thing and fixing the Immigration Courts with bipartisan legislation to create an independent Immigration Court System, with adequate resources, professional court administration, and freedom from political interference in its due process functions, the Trump Administration intentionally made things much, much worse! More judges have resulted in more backlogs because of politicized, incompetent judicial administration and poorly designed enforcement policies at DHS. If that doesn’t tell you something is seriously wrong, what will?
Newly released records obtained by the News4 I-Team show the severe impact new immigration policies have in the Washington, D.C., metropolitan area; one former judge says it’s making the huge immigration court case backlog even worse.
Records from January through July of 2017 show immigration judges around the country were forced to postpone 24,806 cases, because those judges were not in their courtrooms to hear cases.
In the Virginia and Maryland court locations, which serve the D.C. area, more than 2,700 local cases have been pushed off, sometimes for years, because the judges were instead reassigned to hear cases at the border.
“What it isn’t serving, I think, is due process and the ends of justice,” said Judge Paul Wickham Schmidt, who retired from the immigration court in Arlington in 2016, “I think it’s a misuse of resources.”
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUmx6bGk
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Schmidt said he’s glad he left the bench, because it allows him to speak freely about what he’s seeing in the court system today.
“It’s a disaster. I think it’s moving toward implosion,” he added, directing his barbs at current immigration policies and the shift in which types of cases are now a priority.
“They’re trying to detain everybody who arrives, so they’ve assigned more judges to the southern border,” said Schmidt. “And those judges leave behind full dockets.”
DC-Area Immigration Courts Scheduling Hearings for 2021
The News4 I-Team learned in the first seven months of this year, the Department of Justice reassigned judges from around the country more than 200 times, usually for two weeks or more. Additional reassignments are ongoing and more are scheduled later this year.
In Arlington, Virginia records show at least 15 reassignments, and while the judges were gone, they had to postpone 2,580 local cases. Only Los Angeles, New York and Miami had more.
“But since most judges are backed up for years, they don’t have any vacant (slots). It’s not like they move them to next week. They move them to slots 3 to 4 years down the road,” said Schmidt. “Why would you use people in an office like Arlington that’s overwhelmed?”
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUnE6DPv
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The Arlington court is already scheduling cases for December 2021. That’s the second longest delay in the nation.
In May alone, five of the seven Arlington judges had weeks of reassignment to the border. Records show they delayed 946 cases as a result.
“When you can’t give people hearing dates that are reasonable dates, which they can count on, they know it’s actually going to take place, then as a judge I feel you lose credibility,” said Schmidt.
Immigration: Crisis in the Courts
Schmidt said to make matters worse, while judges are reassigned, they cannot work remotely on cases back at their home courts because the files are all on paper, not electronic.
He said at the border, many cases involve people who recently arrived in the United States and haven’t had time to get a lawyer, so a lot of those cases are not even ready to be heard and get delayed as well.
Published 2 hours ago | Updated 50 minutes ago
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUncKBbO
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What kind of “court system” puts “Gonzo Enforcement” first and Due Process last? A “captive” one run by incompetentent politicos!
I hope that when Sessions finally shows up for his long-awaited hearing before the Senate Judiciary Committee, Senator Leahy will grill him on his biased and incompetent administration of the U.S. Immigration Courts as well as the false narratives and misrepresentations Sessions spreads about Dreamers and migrants generally.
“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.
As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.
But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.
“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”
Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.
In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well astake some pressure off thecurrently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.
According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.
“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.
Her three colleagues at the facility who had also been ordered there by the DOJwere no busier. One who had been sent to Otero previously told her the empty caseloads were normal.
“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”
On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”
The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.
But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centersas offering inadequate work for their visiting justices.
“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.
One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.
The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”
The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”
Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.
Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)
When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.
Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”
More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.
The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.
The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied thatthe deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year,and that more than 90 percent of cases by “surge” judges had led to deportation orders.
But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.
“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, istheadministration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.
Not everyone thinks sending judges to the border is a bad idea.
“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.
Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”
The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”
Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”
But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”
Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.
The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.
“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.
But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation.“They’re basically giving amnesty ironically to the non-detained docket.”
“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”
Those of you who have seen Jodie in action know that she is a brilliant, hard-hitting, no holds barred investigative journalist who always gets to the bottom of her story — no matter how little some public officials want the truth to come out! She and her all-star investigative team, including Senior Investigative Platform Manager Rick Yarborough and Photojournalist Editor Stephen Jones, are relentless.
Using her contacts throughout the nation, Jodie shows you what our Government has been trying to hide for years — the ridiculous backlogs and impending failure of one of our nation’s largest, perhaps the largest, Federal Court system! I was stunned and amazed by the amount of technical knowledge and feeling about the human side of this needless national tragedy that Jodie brought to her interview with me.
The judges and staff of the Immigration Court work hard. That’s always been true. But, that has not helped many of the vulnerable individuals caught up in the morass and not always finding the justice that our laws promise them. Similarly, it does not serve the true needs of DHS enforcement to have results determined by the number of pending cases in a particular court, many of which should have long ago been settled by the responsible exercise of prosecutorial discretion as they would have been in almost any other high volume court system in America.
What has happened to the United States Immigration Courts under the control of the U.S.Department of Justice is a sad tale of bureaucratic incompetence, intransigence, inbreeding, improper influence by enforcement authorities, and inability to provide the independent judiciary that can deliver on the court’s forgotten promise of “guaranteeing fairness and due process for all.” This has combined with a disturbing lack of Congressional oversight and reform. How can we clean up this tragic “train wreck” that threatens to topple the entire Federal Court System and to undermine our nation’s Constitution and our ideals?
Over three quarters of U.S counties now have residents in the Immigration Court system! But, even if you aren’t one of them, or a relative, friend, neighbor, employer, teacher, student, employee, patient, customer, or fellow parishioner of one of them, this mess affects you as an American. If this is the way we treat the most vulnerable among us, what’s going to save you when your precious rights are challenged in a U.S. justice system that has lost sight of justice?
Tune in Monday night to find out more about one of “America’s Most Underreported Crises.” Those interested should be able to “live stream” NBC4 News at 6 with the NBC4 app. I assume it will also be available online in the NBC4 app archives under “Investigative Reporting” once the piece has aired.
Part II Of Jodie’s Report, which specifically examines the Baltimore and Arlington Immigration Courts, will air at 11:15 PM tonight.
“Juan Coronilla-Guerrero promised deportation to Mexico would kill him and it did.
On Sept. 12, four armed men burst into a house in San Luis de la Paz in central Mexico looking for the 28-year-old married father. The gunmen went to the bedroom where Coronilla-Guerrero was sleeping with his young son, jammed a pistol to his temple and took him away. “Don’t worry, my love. Don’t worry,” he told his son before disappearing, according to an account in the Austin American-Statesman.
“I knew that if he came back here, they were going to kill him,” Coronilla-Guerrero’s wife told the paper. “That’s what happened.”
Coronilla-Guerrero’s body was found last week on the side of a road 40 minutes away from the house where he had been staying in Central Mexico. The death occurred three months after Coronilla-Guerrero and his family begged a federal judge not to catapult him back over the border for fear of the Mexican gangs they had illegally crossed the border to flee in the first place.
Coronilla-Guerrero’s warnings had apparently been well-founded — his wife (who has not used her first name publicly for safety reasons) — has indicated she believes a gang was responsible for the killing. The violence now serves as a grim reminder of the life facing some immigrants after they’ve been taken into Immigration and Customs Enforcement custody and worked through the immigration courts.
The case raised alarms from the start. On March 3, Coronilla-Guerrero was arrested at the Travis County Courthouse. He was in the building to face two misdemeanor charges — marijuana possession and family violence. Although he had already been arrested and deported in 2008, Coronilla-Guerrero made the appearance to address the charges; both he and his wife said the family violence charge was a misunderstanding and Coronilla-Guerrero had not abused his wife.
“He wanted to do the right thing and he appeared at his second court date,” Coronilla-Guerrero’s wife told the Austin American-Statesman. “When he was leaving, immigration agents were waiting for him and took him. He didn’t even get to say goodbye to me, or to his son, because now we don’t even know where he is going to be.”
The arrest, however, triggered larger concerns. In the wake of President Trump’s increased emphasis on immigration control and promises to build a border wall with Mexico, many observers were worried ICE agents would use the criminal justice system as a fishing ground for undocumented defendants. At the time of the arrest, KVUE reported it was the first time federal immigration agents had made an arrest at the courthouse.
“It struck me as extraordinary,” Daniel Betts, Coronilla-Guerrero’s attorney, told the station.
Following his deportation, Coronilla-Guerrero went to live with his wife’s family in San Luis de la Paz while his wife stayed in Texas. Following his death, she returned to Mexico. Local authorities reportedly have not released any information on the death.”
As my friend and former colleague Judge Dana Leigh Marks says, “like trying death penalty cases in traffic court.” We need an independent Article I Immigraton Court to inbsure that the DHS and Sessions (the “real” head of DHS Enforcement) comply with the law and due process!
The stakes are far too high to be entrusted to an administrative court held captive by Jeff Sessions!