"The Voice of the New Due Process Army" ————– 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.
In addressing 44 newly-hired immigration judges earlier this week, their new boss, Jeff Sessions, demonstrated not only his usual level of bias (to a group charged with acting as impartial adjudicators), but a very strange grasp of how our legal system works.
Sessions told the new class of judges that lawyers “work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interest. Theirs is not the duty to uphold the integrity of the Act.”
Later in his remarks, Sessions opined that “when we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation.”
To me, the above remarks evince a complete misunderstanding of how our legal system works.
In 1964, the U.S. Supreme Court decided Katzenbach v. McClung, a landmark civil rights case. In order to find that the federal Civil Rights Act applied to a local, family-owned barbecue restaurant in Alabama, DOJ attorneys persuaded the Supreme Court that there was federal jurisdiction under the Constitution’s Commerce Clause because of segregation’s impact on interstate commerce. I’m no Constitutional law expert, but I’m not sure that when its authors afforded Congress the power “to regulate Commerce with foreign Nations, and among the several States,” that this is what they had in mind. Was creatively interpreting the Commerce Clause in order to end segregation “like water seeping through an earthen dam” to get around the clear words of the Constitution? Did ending segregation constitute, in Sessions’s opinion, doing violence to the rule of law out of a sense of sympathy for the black victims of Alabama’s racist policies?
Every positive legal development is the result of an attorney advancing a creative legal argument, often motivated by a sense of sympathy for unfair treatment of a class of individuals in need of protection. Many landmark decisions have resulted from such attorneys offering the court an unorthodox but legally sound solution to a sympathetic injustice. This is actually how the legal system is supposed to operate. Our laws are made by Congress, and not the Executive branch. When Congress drafts these laws, they and their staffers are well aware of the existence of lawyers and judges and their ability to interpret the statutory language.
Had Congress not wanted our asylum laws to be flexible, allowing them to be interpreted in myriad ways to respond to changing types of persecution carried out by different types of actors, it could have said so. When the courts found that victims of China’s coercive family planning policies did not qualify for asylum, Congress responded by amending the statutory definition of “refugee” to cover such harm. In the four years following the BIA’s conclusion that victims of domestic violence qualified for asylum, Congress notably did not enact legislation barring such grants. To the contrary, after Jeff Sessions issued his decision with the intent of preventing such grants, a Republican-led Congressional committee unanimously passed a measure barring funding for government efforts to carry out Sessions’ decision, a clear rebuke by the legislative branch of Sessions’s view that such claims are illegitimate. https://www.washingtonpost.com/politics/gop-led-house-committee-rebuffs-trump-administration-on-immigrant-asylum-claim-policy/2018/07/26/3c52ed52-911a-11e8-9b0d-749fb254bc3d_story.html?utm_term=.809760180e2a.
Interestingly, Sessions finds it perfectly acceptable to use unorthodox interpretations of the law when it serves his own interests. For example, he argues that he is upholding “religious liberty” in defending the right of bigots to discriminate against LGBTQ individuals. https://www.advocate.com/politics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force. The conclusion drawn from this inconsistency is that Sessions does not oppose creative interpretations of the law; he rather believes that the only proper interpretation of the law is his.
One of the problems with this approach is that Sessions doesn’t actually know anything about the law of asylum. And yet he somehow feels entitled to belittle the analysis of the leading asylum experts in academia, the private bar, USCIS, ICE, and EOIR, all of whom have repeatedly found victims of domestic violence to satisfy all of the legal criteria for asylum. In its 1985 decision in Matter of Acosta, (a case that Sessions cited favorably in his controversial decision), the BIA noted that the ground of “particular social group” was added to the 1951 Convention on the Status of Refugees (which is the basis for our asylum laws) “as an afterthought.” The BIA further noted that “it has been suggested that the notion of ‘social group’ was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of refugee.” (The full decision in Acosta can be read here: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2986.pdf).
As a young attorney, I learned (from the late, great asylum scholar Arthur Helton) that at the last moment, the Swedish plenipotentiary to the 1951 Convention pointed out that there were victims of Hitler and Stalin in need of protection who did not fall under the other four Convention grounds of race, religion, nationality, or political opinion. A fifth, catch-all ground was therefore proposed to serve as a “safety net” in such cases. In other words, the reason the particular social group category was created and is a part of our laws was because the Convention’s drafters, perhaps “like water seeping through an earthen dam,” created an intentionally nebulous legal standard out of a sense of sympathy for victims of injustice. The ground was therefore created to be used for the exact purpose decried by Sessions.
Because of the strength of such legal authority, Sessions’s decision in Matter of A-B-, in spite of dicta to the contrary, actually still allows for the granting of domestic violence and gang violence-based asylum claims. The decision criticized the BIA’s precedent decision in Matter of A-R-C-G- for reaching its conclusion without explaining its reasoning in adequate detail. However, where the record is properly developed, a legally solid analysis can be shown to support granting such claims even under the standards cited by Sessions.
This is what makes Sessions comments to the new class of immigration judges so disturbing. Having appointed judges whom his Justice Department has found qualified, he should now leave it to them to exercise their expertise and independent judgment to interpret the law and determine who qualifies for asylum. But in declaring such cases to lack validity, belittling private attorneys innovative arguments, and equating the granting of such claims to doing violence to the rule of law, Sessions aims to undermine right from the start the judicial independence of the only judges he controls. EOIR’s management has demonstrated that it has no intention of pushing back; instead, it asks how high Sessions wants the judges to jump.
Knowing this, how likely is one of the 44 new judges to grant asylum to a victim of domestic violence who has clearly met all of the legal criteria? New immigration judges are subject to a two-year probationary period. It’s clear that a grant of such cases under any circumstances will be viewed unfavorably by Sessions. In a highly publicized case, EOIR’s management criticized a judge in Philadelphia whose efforts at preserving due process they bizarrely interpreted as an act of disobedience towards Sessions, and removed the case in question and more than 80 cases like it from the judge’s docket.
So if a new judge, who may have a family to support, and a mortgage and college tuition to pay, is forced to choose between applying the law in a reasoned fashion and possibly suffering criticism and loss of livelihood, or holding his or her nose and adhering to Sessions’s views, what will the likely choice be?
Sessions concluded his remarks by claiming that the American people “have spoken in our laws and they have spoken in our elections.” As to the latter, Americans voted against Trump’s immigration policies by a margin of 2.8 million votes. As to the former, Congress has passed laws which have been universally interpreted by DHS, EOIR, and all leading asylum scholars as allowing victims of domestic violence to be granted asylum based on their membership in a particular social group. It is time for this administration to honor the rule of law and to restore judicial independence to such determinations.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
A union representing the country’s 350 immigration judges slammed Attorney General Jeff Sessions for comments he made that suggested they were sidestepping the law and showing too much sympathy when handling certain cases.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said Monday in a speech to newly hired judges. “Your job is to apply the law – even in tough cases.”
Immigration judges, who work for the Department of Justice and are expected to follow guidelines laid out by the attorney general, said they believe Sessions was politicizing migrant cases.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokeswoman for the National Association of Immigration Judges and an immigration judge in San Francisco, told BuzzFeed News. “It did appear to be a one-sided argument made by a prosecutor.”
Ashley Tabaddor, president of the National Association of Immigration Judges, added that “we cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role.”
Sessions, an ideological ally of President Trump on immigration, has established additional restrictions on the types of cases that qualify for asylum and when certain cases can be suspended. He was involved in the White House’s controversial “zero tolerance” policy that led to family separations at the U.S.-Mexico border.
AARON REICHLIN-MELNICK of the American Immigration Council reports on Immigration Impact:
Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.
While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms. He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.
Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”
Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.
Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.
Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”
Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.
Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”
In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”
Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.
In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.
JEFF SESSIONS DEMANDS IMMIGRATION JUDGES SHOW NO SYMPATHY, SAYS IT DOES ‘VIOLENCE TO THE RULE OF LAW
BY
As the Trump administration continued to struggle to reunite hundreds of migrant children separated from their parents resulting from the president’s “zero-tolerance” policy, Attorney General Jeff Sessions told dozens of incoming immigration judges Monday to show no sympathy for those who appear before them in court.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said. “Your job is to apply the law—even in tough cases.”
Sessions, the most powerful attorney in the country as head of the Justice Department, was speaking to 44 new immigration judges in Falls Church, Virginia.
He also took aim at lawyers who represent immigrants who were caught illegally crossing the U.S.-Mexico border, suggesting they try to misconstrue immigration law “like water seeping through an earthen dam.” He told the judges it was their responsibility to “restore the rule of law” to the system.
. . . .
Read the rest of Ramsey’s article at the above link.
There is a simple term for justice not tempered by mercy, compassion, and sympathy: INJUSTICE. Indeed, the Fifth Amendment to the U.S. Constitution, which includes the essential Due Process Clause, was specifically intended to protect the populace against Executive overreach of the kind that England imposed on the Colonies prior to the Revolution. That’s exactly what we’re seeing under Jeff Sessions!
As most Immigration Judges recognize, Session’s overt White Nationalism, racial bias, and absurd claims that he is “restoring the rule of law” (when in fact he is doing the exact opposite) are totally out of control.
It’s time for a “Due Process intervention” by the Article III Courts. Sessions and the DOJ must be stripped of their untenable and unconstitutional control over the Immigration Courts. Appoint a “Special Master” — someone like retired U.S. Supreme Court Justice Anthony Kennedy — to run the Immigration Court System and restore Due Process and fairness until Congress does its job and creates an independent U.S. Immigration court outside the Executive Branch.
The problems aren’t going away under the Trump Administration. And, if the Article III Judiciary doesn’t act it will find itself crushed under thousands of defective removal orders that Sessions is urging the Immigration Judges to turn out without Due Process or the “fair and impartial” adjudication that it guarantees. The Article IIIs can run, but they can’t hide from this Constitutional crisis!
Sessions’s remarks are also an insult to all of the many current and former U.S Immigration Judges who, unlike Jeff Sessions, have been deciding “tough cases” for years, within the law, but with sympathy, understanding, humanity, and compassion which are also essential qualities for fair judging under our Constitutional system that Sessions neither understands nor respects. No wonder his own party judged him unqualified for an Article III judgeship years ago. He hasn’t changed a bit.
Attorney General Jeff Sessions on Monday warned incoming immigration judges that lawyers representing immigrants are trying to get around the law like “water seeping through an earthen dam” and that their responsibility is to not let them and instead deliver a “secure” border and a “lawful system” that “actually works.”
He also cautioned the judges against allowing sympathy for the people appearing before them, which might cause them to make decisions contrary to what the law requires.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” he said.
The comments immediately drew criticism from the union that represents the judges and from former judges.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” said Dana Marks, a spokesperson for the National Association of Immigration Judges and an immigration judge in San Francisco. “It did appear to be a one-sided argument made by a prosecutor.”
Jeffrey Chase, a former immigration judge and now an immigration attorney, said the comments overlooked the fact that asylum laws were designed to be flexible.
“We possess brains and hearts, not just one or the other,” he said. It is sympathy, Chase said, that often spurs legal theories that advance the law in asylum law, civil rights, and criminal law.
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.
Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.
Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, which represents the nation’s 350 immigration judges, said Sessions’ speech was notable for its lack of any mention of fairness or due process. “We cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role,” said Tabaddor.
The union has long called for its separation from the Department of Justice in order to be truly independent of political decision-making.
“Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” Sessions said in a speech to 44 newly hired judges who were being trained in Falls Church, Virginia.
He ended his speech by telling the incoming judges that the American people had spoken in laws and “in our elections.”
“They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them,” Sessions said.
From the beginning of October through the end of June, immigration judges had granted around 22% of asylum cases and denied around 41% of cases. The rest of the cases were closed. The rate is similar to previous fiscal years. Sessions’ decision to limit the types of cases in which asylum should be granted was made in mid-June.
Attorney General Jeff Sessions said Monday that he plans to increase the number of immigration judges in the U.S. by 50 percent by the end of Fiscal Year 2018 – part of the administration’s effort to take on a case backlog that has ballooned under the Trump administration’s zero-tolerance policy.
The number of immigration cases on hold in the U.S. has risen 38 percent since Trump took office, with 746,049 pending immigration cases as of July 31, up from 542,411 at the end of January 2017, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.
Sessions asserted his authority on Monday during remarks welcoming 44 newly hired immigration judges – the largest class in U.S. history – noting that they must operate under his supervision and perform the duties that he prescribes.
As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,’ he said. ‘I do not apologize for expecting you to perform, at a high level, efficiently and effectively.’
The attorney general said the system for seeking asylum in the U.S. has been ‘abused for years’ and while the judges must respect immigrants’ rights, they should also ‘reject unjustified and sometimes blatantly fake claims.’
Sessions also had harsh words for the attorneys who represent immigrants, describing them as ‘water seeping through an earthen dam,’ who attempt to ‘get around’ immigration laws.
The message follows a series of policy changes that have put increasing pressure on immigration judges to close cases quickly while taking away their authority to prioritize cases based on their own judgment.
‘We’re clearly moving toward a point where there isn’t going to be judicial independence in the immigration courts anymore,’ former immigration Judge Jeffrey S. Chase told DailyMail.com.
U.S. Attorney General Jeff Sessions delivers remarks to the incoming class of immigration judges in Falls Church, Virginia
For example, the Justice Department earlier this year announced a quota system requiring judges to clear at least 700 cases annually in order to be rated as ‘satisfactory’ on their performance evaluations.
Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.
Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases, a process that allowed a judge to indefinitely close low-priority cases to make room on the docket for more serious offenses – such as those involving violent criminals and gang members.
From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions. Now experts say those cases will be added back to the dockets, further compounding the backlog.
In addition, Sessions issued a legal opinion earlier this year designed to make it impossible for victims of domestic violence and gangs to seek asylum in the U.S. – which some critics say will limit judicial independence.
Legal experts said Monday that Session’s speech was designed to assert his authority over the judges and impress upon them the importance of issuing rulings consistent with his own philosophy.
‘That was an enforcement speech,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘The whole implication that somehow (people seeking asylum) are bending the law and that there are attorneys trying to go through loopholes is the opposite of the truth … The losers in these asylum cases aren’t simply migrants trying to game the system. They are people facing real dangers when they go home.’
Sessions did not shy away from calling on the new judges to rise to the challenges before them.
‘Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts,’ Sessions said in his prepared remarks. ‘No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.’
Sessions has said that he has introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.
Immigration judges are appointed by the U.S. attorney general. The new additions bring the total number of immigration judges in the U.S. to 397.
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There are lots of helpful charts and graphs accompanying Val’s excellent article. Go to the link above to view them, along with the complete article.
Sessions’s claim that we have a “generous welfare system and open borders” is total BS. We don’t have open borders, and never have had. And SEssions and his GOP cronies have worked hard to make our welfare system not very generous at all, particularly when it comes to foreign nationals. It’s a total insult, as well as an arrogant rewriting of history to imply that the Nixon, Ford, Reagan, Bush I, Clinton, Bush II, and Obama Administrations didn’t care about immigration or border enforcement. All of them took their best shot at it, under the circmstances. I should know, as I served in all of those Administrations except for Bush I. Indeed, if anything, for better or worse, and many would say the latter, enforcement during the Obama era was probably more effective than it has been under the “Trump/Sessions gonzo approach.”
Individuals fleeing from the Northern Triangle aren’t coming for welfare. They are coming to save their lives, something that Sessions’s mindless restrictionist philosophy apparently makes it impossible for him to acknowledge. Moreover, individuals have a statutory right to apply for asylum, regardless of the means of entry. Insuring that asylum, withholding of removal, and protection under the Convention Against Torture are propoerly extended to inbdividuals seeking refuge in the US is just as much a part of “enforcing the rule of law” as are removals. Indeed, the consequencers of wrongfully removing an individual entitled to protection are potentially catestropohic.
OK. Now let’s get beyond Sessions’s White Nationalist screed and get some truth about:
The ethical standards for Immigration Judges;
The real intent of the Refugee Act of 19809; and
What being a fair and impartial immigration judge is really about.
Sessions’s Statement Favoring A Party To Immigration Court Proceedings And Showing Disrespect For The Opposing Party & Their Representatives Violates The EOIR Ethical Code By Showing An “Appearance of Bias.”
Let’s remember that under the strange rules governing EOIR and the Immigration Courts within the USDOJ, Attorney General Jeff Sessions can and has taken on the role as a judicial adjudicator in an individual cases, changing results and setting precedent for the BIA and the Immigration Judges.
So, what does the EOIR Code of Judicial Ethics say about judicial conduct?
V. Impartiality (5 C.F.R. § 2635.101(b)(8))
An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of aparticular case. An Immigration Judge should encourage and facilitate pro bono representation. An Immigration Judge may grant procedural priorities to lawyers providing pro bono legal services in accordance with Operating Procedures and Policies Memorandum (OPPM) 08-01.
VI. Appearance of Impropriety (5 C.F.R. § 2635.101(b)(14))
An Immigration Judge shall endeavor to avoid any actions that, in thejudgment of a reasonable person with knowledge of the relevant facts, wouldcreate the appearance that he or she is violating the law or applicable ethical standards.
. . . .
IX. Acting with judicial Temperament and Professionalism
An Immigration Judge should be patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers and others with whom the Immigration Judge deals in his or her official capacity, and should not, in the performance of official duties, by words or conduct, manifest improper bias or prejudice.
Note: An Immigration Judge should be alert to avoid behavior, including inappropriate demeanor, which may be perceived as biased. The test forappearance of impropriety is whether the conduct would create in the mind of a reasonable person with knowledge of the relevant facts the belief that the Immigration Judge’s ability to carry out his or her responsibilities with integrity, impartiality, and competence is impaired.
Note: An Immigration Judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the immigration process into disrepute. Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics. Moreover, an Immigration Judge must avoid conduct that may reasonably be perceived as prejudiced or biased. Immigration Judges are not precluded from making legitimate reference to any of the above listed factors, or similar factors, when they are relevant to an issue in a proceeding.
Note: An Immigration Judge has the authority to regulate the course ofthe hearing. See 8 C.F.R. §§ 1240.1(c), 1240.9. Nothing herein prohibits theJudge from doing so. It is recognized that at times an Immigration Judgemust be firm and decisive to maintain courtroom control.
Wow. Sure sounds to me like Sessions is in clear violation of each of these!
Let’s get down to “brass tacks” here. Imagine that you are a represented asylum applicant from the Northern Triangle with an upcoming hearing. The morning of your hearing, you read the statement that Jeff Sessions made to the new Immigration Judges.
That afternoon, when you appear at the hearing you find that none other than Jeff Sessions is yo\ur U.S. Immigration Judge. So, do you think that you and your attorney are going to get a “fair and impartial” hearing, including a possible favorable exercise of discretion” on your asylum application, as our Constitution and laws require? Of course not!
But remember, all asylum applicants are appearing before “judges” who are actually employees of Jeff Sessions. Each judge knows that he or she owes career longevity to pleasing Sessions and his minions. Each judge also knows that at any time Sessions can arbitrarily reach down into the system, without explanation or notice, and “certify” any case or decision to himself.
Clearly, after having publicly taken a pro-DHS, pro-enforcement, anti-asylum applicant, anti-private attorney position, Sessions should not ethically have any role whatsoever in the outcome of cases in the Immigration Court System. But, clearly, he does have such a role. A big one!
If any sitting Immigration Judge conducted himself or herself the way Sessions just did, they would be suspended immediately. How does Sessions get away with disregarding judicial ethics in his own system?
The Refugee Act of 1980 Implements Our International Treaty Obligations Under the UN Convention & Protocol Relating To The Status Of Refugees and Is Actually About “Protecting” Those In Danger, Not Finding Ways Of “Rejecting” Their Claims.
Let’s hear from a former legislator who played a key role in developing and enacting the Refugee Act or 1980, former Representative Elizabeth Holtzman (D-NY) who at that time was the Chair of the House Immigration Subcommittee. This is from the letter that Holtzman recently wrote to Secretary Nielsen resigning from the DHS Detention Advisory Committee because of its perversion of the law, particularly the illegal family separation policy engineered by Sessions.
What is so astonishing to me is how much this country has changed since 1980, when I was privileged as chair of the House Immigration Subcommittee to co-author with Senator Ted Kennedy the Refugee Act of 1980. The Act — which was adopted without serious controversy — created a framework for the regular admission of refugees to the U.S. The immediate stimulus for the bill was the huge exodus of boat people leaving Vietnam. Though the memory of the Holocaust played a role, too, particularly the knowledge that the U.S. could have rescued so many people from the hands of the Nazis but did not. The Refugee Act marked our commitment as a nation to welcoming persons fleeing persecution anywhere.
In those days, the U.S. also showed world leadership on refugee resettlement. For example, America understood that it bore a special responsibility for the refugees fleeing Vietnam because of its long involvement in the Vietnam War. Obviously, we could not absorb all the refugees, but our government worked hard to get resettlement solutions for all. First, it persuaded the countries neighboring Vietnam to which people fled in small boats not to push those refugees back out to sea, where they would confront pirates, drowning and other terrible dangers. (I know because I participated in speaking to those countries.) Then, the U.S. organized a world conference in Geneva, where countries agreed to accept specific numbers of refugees. The U.S. was able to induce other countries to act because it took the largest share. Our country’s leadership turned the boat people crisis into one of the most successful refugee resettlement programs ever.
Now, in response to the influx of (mostly) women and their children fleeing horrific violence in Central America, the U.S. government can think only of building a wall and unlawfully separating children from their parents — something I call child kidnapping, plain and simple — as a deterrent to keep others from coming to the US. How far we have we fallen.
And how easy it would be to do the right thing. The U.S. needs to start with recognizing that it once again has a special responsibility for a dire situation, this time in the Northern Triangle. We overthrew the democratically elected government in Guatemala, which was replaced by one right-wing government after another, including one that committed genocide against the indigenous population. In Honduras and El Salvador, we similarly propped up right-wing governments that did nothing for their people, leaving them without effective governance in place. The fact that gangs have been able to terrorize the population with impunity is a result.
More must be done as well. We should reinstate the Central American Minors Refugee/Parole Program, established under President Obama and cancelled by the Trump Administration, whereby people could apply in their home countries for admission as refugees to the U.S. without facing the perils of the overland trip. Second, we should try to get Canada and other countries in South America to accept refugees from the Northern Triangle countries, reducing the burden on us. To do this, we would have to agree to take a substantial number of refugees from the Northern Triangle countries as well. And then we should work to improve the governance in these countries, perhaps by involving the United Nations and nearby countries, such as Costa Rica.
Unfortunately, the chance of any such enlightened response toward refugees from the Northern Triangle seems remote. These countries probably fall into Trump’s stated “shithole” category. Plainly, the hostile attitude toward the refugees persists. For example, 463 parents may have been deported without their children. Apparently DHS Secretary Kirstjen Nielsen feels no responsibility for reuniting those with their parents, instead making the flimsy excuse that the parents wanted to leave them behind. While possibly true in a small number of instances, given the fact that many of the parents do not speak English, or even Spanish, but their indigenous language, it is more likely that a significant number of the parents had no idea of what was happening or how to get their children back. They may even have been coerced into leaving. In any case, Nielsen has a very poor record of truth-telling. On June 17, she insisted that “We do not have a policy of separating families at the border. Period.”
Most Americans, fortunately, have found the separation policy abhorrent. Those of us who do, need to press the Administration to find a more humane and more comprehensive solution, like our country has done in the past. But if the Administration continues the enforced separation policy, I hope that the courts will enforce their decisions, which have required reunification, by holding the Secretary and others in contempt if necessary. Congress should be called on to act by holding hearings and adopting censure resolutions. None of us can sit idly by when our government stoops to such racist, malign behavior.
Yes, with responsible leadership, it would be relatively easy to do the right thing here. But, it’s not going to happen with the “wrong people” like Donald Trump, Stephen Miller, Jeff Sessions, and Kristjen Nielsen in charge.
The real intent of the Refugee Act of 1980 was to give America the tools to take a leadership role in protecting individuals, particularly those flowing from situations we helped cause like the mess in the Northern Triangle. I’m sure that most of those involved in the bipartisan effort would be shocked by the overtly racist, restrictionist views being pawned off by Sessions as “following the law.” “I call BS” on Session’s perversion of protection laws.
Undoubtedly, cases like Matter of A-R-C-G-, incorrectly overruled by Sessions, actually substantially understated the case for protecting domestic violence victims. There is little doubt in my mind that under a proper interpretation “women in El Salvador” (or Guatemala or Honduras, or many other countries) satisfy the stated criteria for a “particular social group.”
Being a “woman in El Salvador” clearly is :
Immutable or fundamental to identity;
Particularized; and
Socially distinct.
Moreover, there is no legitimate doubt that the status of being a “woman in El Salvador” is often “at least one central reason” for the persecution. Nor is there any doubt that the Governments in the Northern Triangle are unwilling and unable to offer a reasonable level of protection to women abused because of class membership, Sessions’s largely fictional account of country conditions notwithstanding.
At some point, whether or not in my lifetime, some integrity will be re-injected into the legal definition by recognizing the obvious. It might come from Congress, a more qualified Executive, or the Courts. But, it will eventually come. The lack of recognition for women refugees, who perhaps make up a majority of the world’s refugees, is a symptom of the “old white guys” like Sessions who have controlled the system. But, that’s also likely to change in the future.
My esteemed colleague, retired U.S. Immigraton Judge Jeffrey S. Chase said it best:
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.
Let’s see what some real judges who have had a role in the actually fairly adjudicating asylum claims have to say about the qualities of judging.
Here’s one of my favorite quotes from the late Seventh Circuit Judge Terence T. Evans in Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring) that sums up the essence of being a good Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.
Or, check out this heartfelt statement from my former colleague Judge Thomas Snow, one of “Arlington’s Finest,” (who also, not incidentally, had served as the Acting Chief Immigration Judge and Acting Director of EOIR, as well as being a long-time Senior Executive in the USDOJ) in USA Today:
Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.
We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.
We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions
And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.
Here’s a “pithier” one from my friend and colleague Judge Dana Leigh Marks, former President of the National Association of Immigration Judges (who also was the “winning attorney” representing the plaintiff in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)) — I was on the “losing” INS side that day):
[I]mmigration judges often feel asylum hearings are “like holding death penalty cases in traffic court.”
Finally, here’s my take on being an Immigration Judge after 45 years in the field, including stints at the BIA, the “Legacy INS,” private practice, and academics:
From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is alwayson public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.
Compare Sessions’s one-sided, biased outlook with the statements of those of us who have “walked the walk and talked the talk” — who have had to listen to the horrible stories, judge credibility, look at whether protection can legally be extended, and, on some occasions, look folks in the eye and tell them we have no choice but to send them back into situations where they clearly face death or danger.
Sympathetic understanding of refugees and the protection purposes of refugee, asylum, and CAT laws are absolutely essential to fair adjudication of asylum and other claims for relief under the Immigration Laws. And, clearly, under the UNHCR guidance, if one is going to err, it must be on the side of protection rather than rejection.
That’s why Jeff Sessions, a cruel, biased, and ignorant individual, lacking human understanding, sympathy, a sense of fundamental fairness, a commitment to Due Process, and genuine knowledge of the history and purposes of asylum laws has no business whatsoever being involved in immigration adjudication, let alone “heading” what is supposed to be a fair and impartial court system dedicated to “guaranteeing fairness and Due Process for all.”
Senator Elizabeth Warren tried to tell her colleagues and the rest of America the truth about Jeff Sessions and the horrible mistake they were making in putting such a famously unqualified man in charge of our Department of Justice. But, they wouldn’t listen. Now, refugees, families, and children, among his many victims, are paying the price.
Sessions closes with a final lie: that the American people spoke in the election in favor his White Nationalist policies. Whether Sessions acknowledges it or not, Donald Trump is a minority President. Millions more voted for Hillary Clinton and other candidates than they did for Trump.
Almost every legitimate poll shows that most Americans favor a more moderate immigration policy, one that admits refugees, promotes an orderly but generous legal immigration system, takes care of Dreamers, and controls the borders in a humane fashion as opposed to the extreme xenophobic restrictionist measures pimped by Sessions, Trump, Steven Miller, and the GOP far right. In particular, the separation of children, Sessions’s unlawful “brainchild,” has been immensely (and rightfully) unpopular.
Jeff Sessions has never spoken for the majority of Americans on immigration or almost anything else. Don’t let him get away with his noxious plans to destroy our justice system! Whether you are an Immigration Judge, a Government employee, or a private citizen, we all have an obligation to stand up to his disingenuous bullying and intentionally false, xenophobic, racially-motivated, unethical, scofflaw narrative.
Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)
In an article full of memorable passages, here is one of my favorites:
Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.
This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.
The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.
Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.
Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to AG’s Decision in Matter of L-A-B-R-
August 17, 2018
As former Immigration Judges and Members of the BIA with many decades of combined experience on thebench, we must expose the Attorney General’s latest blow to judicial independence in his decision in Matter of L-A-B-R-.
There is no question that the Immigration Courts are currently overwhelmed by a backlog of more than 700,000 pending cases. Facing the imposition of unreasonable case completion quotas, many Immigration Judges presently feel forced to double-book hearings. One of our members who recently left the bench states that judges at present may receive ten to fifteen motions for continuance a day. Sessions’s latest decision would force each judge to write lengthy, highly detailed decisions for each of these while still trying to complete three or more full hearings a day. Of course, the implementation of this latest decision is entirely unrealistic. Furthermore, the decision imposes no such requirements in instances where DHS seeks a continuance (often for avoidable reasons such as its inability to locate the file or to have adjudicated a petition in time).
It should be remembered that many of the cases before the Immigration Courts involve individuals whose lives are at risk in their home countries. As the President Emeritus of the group’s union has said,Immigration Judges hear death penalty cases under traffic court conditions. In his decision, Sessions usesthe words “efficient,” “efficiency,” or “inefficient” 12 times. The word “justice” (other than in the name ofthe agency he heads, or as a job title) appears only once.
Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets. While judges share the administration’s concern over the high volume of cases, they should be allowed a say inproposing solutions that will not infringe on their independent judgment or their ability to afford due process.
Sincerely,
Hon. Steven Abrams Hon. Jeffrey S. Chase Hon. Bruce J. Einhorn Hon. John F. Gossart, Jr. Hon. Rebecca Jamil Hon. William P. Joyce Hon. Carol King
Hon. Margaret McManus Hon. Charles Pazar Hon. Lory D. Rosenberg Hon. Susan Roy
Hon. Paul W. Schmidt Hon. Polly A. Webber
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List of Retired Immigration Judges and Former BIA Members
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration LawyersAssociation’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
Honorable Rebecca Jamil
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a
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The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
AILA Doc. No. 18081776. (Posted 8/17/18)
Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
Honorable Charles Pazar
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blogimmigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served
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as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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It’s an honor to be part of this group of my distinguished colleagues and to stand in opposition to Sessions’s “deconstruction” of Due Process and fundamental fairness in our United States Immigration Courts. Court systems work best when we allow judges to function as judges, without this type of political interference by non-judges. The latter is a responsible for “Aimless Docket Reshuffling” — one of the key causes of the backlog which has developed and increased over the last three Administrations.
“Group Leader” Hon. Jeffrey Chase forwards these items:
Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:
Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
. . . .
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”
The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
. . . .
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)
Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”
Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!
Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.
An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.
In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune. Different views are one thing; overt bias and lack of empathy is another.
Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.
A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”
Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”
But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.
US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.
Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.
“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”
To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”
That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.
Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges
Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.
The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.
Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.
“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”
Therefore, she adds, they should be structured “like a traditional court.”
Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.
Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.
Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.
“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.
Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.
“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”
Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.
Sessions’ decision will make it even harder.
In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”
The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court. At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.
Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.
According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.
Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”
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Here’s another one from Bea Bischoff at Slate:
How the attorney general is abusing a rarely used provision to rewrite legal precedent.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.
On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.
During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.
Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.
Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.
A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.
During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.
Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.
Sessions trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerablewomen.
After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.
The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.
Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.
Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.
On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.
The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.
In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.
As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.
The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.
While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.
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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.
I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.
A few problems, though:
Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!
There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.
TYSONS, Va. — As the nation’s immigration judges gathered here for training this week, Attorney General Jeff Sessions had a message: They needed to help “end the lawlessness that now exists in our immigration system.”
But to many of the judges, Mr. Sessions’s hard-line immigration agenda is increasingly standing in the way of their ability to mete out justice.
In interviews, some objected to quotas he imposed on them this spring of 700 cases per year, as well as his ban on a bureaucratic tool they used to reduce their caseloads. Others expressed concern about the impact his zero-tolerance policy on illegal immigration could have on their dockets, and his push for faster rulings. They viewed those together as leaving them at risk of creating a system that sacrifices due process for efficiency.
“Sessions is treating them like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts, which count more than 300 judges in their ranks and another two dozen or so on an immigration appeals board.
Mr. Sessions’s carrying out of his immigration agenda has reignited a long-running debate about the independence of immigration judges, who are part of the Justice Department, not the judicial branch. Some of the judges fear that they could be used to help fulfill the administration’s priorities, endangering their independence.
“The Justice Department is the premier law enforcement agency, but the role of law enforcement is different from that of a neutral court,” said Dana Leigh Marks, the president emeritus of the immigration judges’ union. She said the organization believes the time has come to separate immigration courts from the department.
. . . .
In a speech on Monday at the judges’ conference outside Washington, hosted by the Justice Department, Mr. Sessions asked them to look for inefficiencies to finish cases more quickly.
“We have to be very productive,” he said. “Volume is critical.”
Three judges said they were struck by his emphasis on speed, prosecutions and policy matters without acknowledgment of the need to balance those demands with ensuring due process for immigrants. They said they feared the focus on metrics and closing cases would make it harder to sort through complicated cases and easier to simply deny applications for entry into the United States.
Scores of attendees wore American flag pins in support of “judicial independence and integrity in our courts,” according to a note accompanying the pins.
Dozens of judges who gathered early Monday evening expressed anxiety over their treatment, according to one person present who was not authorized to share the details of the private meeting.
They said they lacked specifics on which cases would count toward their quotas. They pointed to Mr. Sessions’s ban on their use of administrative closure, the tool that effectively allowed them to close cases. And they worried that his zero-tolerance policy on illegal immigration would flood the system with new cases and make it hard for them to decrease the system backlog of about 700,000 cases.
The potential impact of Mr. Sessions’s zero-tolerance policy toward immigration has been of particular concern to judges who are already grappling with a large caseload. “It’s as if local police and prosecutors decided to prosecute every traffic ticket of anyone going 2 miles per hour over the speed limit and filled the court system with those cases,” Mr. Schmidt said.
Judges are also resigning in large numbers, Ms. Marks said, a pattern she expected to continue. As of last year, 39 percent of immigration judges were eligible for retirement, according to a study conducted by the Government Accountability Office. Many immigration judges were sworn in during a wave of hiring in the 1990s.
The Justice Department has said it is on pace to hire 100 more judges this year, and its data shows that the department has never filled every slot. Currently there are 336 judges out of the 484 authorized slots.
In a conference session on Tuesday afternoon with Mr. McHenry, one judge asked if they could delay disciplining judges on the attorney general’s directives about metrics and streamlining the system. The room erupted in applause, but the question went unanswered.
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Read Katie’s full article at the above link!
Immigration is an incredibly complex area of the law — often compared with the Tax Code. And, it almost certainly has more direct and potentially life-threatening and life-changing effects than does tax law (with due apologies to my tax lawyer colleagues). For better or worse, when they have an opportunity to get together at annual conferences (which aren’t necessarily held annually), most Immigration Judges love to “talk shop.”
Normally, you’d expect to hear things like questions about pending Supreme Court cases, the latest BIA precedent decision, immigration reform legislation, or how to constructively react to some of the criticism dished out by Circuit Courts, as well as sharing “best practices” to achieve fundamental fairness with efficiency.
But, while I was waiting in the lobby to meet my “dinner group” of some former colleagues, the “hall chatter” was all about things like “judicial dashboards,” “production quotas,” “what counts as a completion,” “docket rearrangement without consultation,” “required retraining” (sounded very much like a judicial version of the former Soviet “re-educaton camps”), “stress relief,” “not losing it in court,” “retirement estimates,” and, perhaps most tellingly “how can I remain true to my oath of office and job description without getting harassed, fired, or reassigned?”
Not much room for talk of law, Due Process, best methods and practices, and how to insure that folks, including the unrepresented, get the relief they might be entitled to under the immigration laws.
Appropriate for a judicial conference? Of course not! But, when your “keynote address” is delivered by a totally non-judicial Enforcement Cheerleader in a tone and with content more appropriate to a class of new Border Patrol officers than a group of supposedly independent, senior, quasi-judicial officers of the U.S. Government, that’s what you’re going to get. What must newly appointed U.S. Immigration Judges — some who gave up other good jobs to serve in these positions — have thought?
What made it even worse was the misuse of the judicial conference as a “platform” to release a “personal rewrite” by Sessions (although I suspect some outside group actually drafted it for him or gave him the outline) of established asylum principles in a way that dripped with overt hostility to legitimate asylum seekers, most of them desperate abused women, and was accompanied by unsupported statements about asylum fraud and bogus statistics that could have come right out of a “restrictionist group’s backgrounder.” The message to the judges was very clear — most asylum seekers are fraudsters, so you should cut corners, prejudge cases, look for any reason to deny asylum, preferably at the preliminary stage without wasting time on a full hearing, and crank out those denials to deter folks from fraudulently seeking refuge under our laws — or start looking for a new job!
From a legal, ethical, moral, and intellectual honesty standpoint, the Attorney General’s speech to the Immigration Judges was simply jaw-droppingly inappropriate! How is a quasi-judicial officer sworn to uphold the U.S. Constitution and charged by regulation with “exercising independent judgment” supposed to “negotiate” a system where the “boss” is basically saying “to heck with fairness, respect, and quality — just crank up the volume.”
Contrary to what Sessions said, DHS isn’t EOIR’s “partner.” No, DHS is a party in interest to every adversary proceeding in Immigration Court! They are legally entitled to no better treatment or consideration than any foreign national respondent, even an unrepresented one!
Indeed, the Due Process Clause of our Constitution applies to respondents but not to the DHS! The “founding fathers” weren’t trying to protect the rights of the Government under the Bill of Rights. They were seeking to protect individuals against Govenment overreach and abuses. Jeff Sessions is just the type of overbearing Government official that the founding fathers might have envisioned abusing the power and authority of his office.
“Rumored” assertions by some EOIR management officials that “we don’t care how you decide these cases” are patently absurd! Of course, Jeff Sessions cares about the results! He wants removal orders — fast and by the truckload!
He certainly wasn’t talking about racing through hundreds of thousands of cases to grant 43%-56% of the asylum cases that are decided on the merits, which is what should happen based on past performance had Sessions not reached in to “tilt” the law against asylum seekers and to use detention and family separation to coerce individuals into giving up potentially winnable claims. Anybody who perceived Sessions’s remarks to the judges on Monday as an encouragement to treat asylum applicants fairly, impartially, humanely, respectfully, and to insure that the generous interpretation of well-founded fear set forth by the Supremes in Cardoza-Fonseca was followed would need their head examined!
Even though immigrants, both legal and undocumented, forced and voluntary, built America and are primarily responsible for our success as a nation, I can’t remember ever hearing Jeff Sessions say anything kind or nice about any foreign national! Indeed, it’s hard to think of any public occasion when Sessions addressed immigration without providing some false narrative, ethnic slur, bogus or misleading statistic, denigrating the contributions of immigrants, dehumanizing them, or seeking to drum up xenophobia by touting false links between migrants and crime.
Sessions’s other message to the judges: By the way, folks, this backlog mess that we and our predecessors have created and are now intentionally aggravating by aimlessly reshuffling dockets, cranking up needless detention, poor enforcement policies, lousy management and hiring practices, absurdly inadequate technology, and attempting to use the Immigration Courts as “deterrents” is your fault (along with the respondents and their attorneys) because you don’t work hard enough or smart enough! You’re going to “take the fall” when we aren’t able to stop human migration by using the Immigration Court as an enforcement tool! We’re giving you “mission impossible,” and if you can’t carry it out, you’re not doing your job!
Congress — which is ultimately responsible for this mess — and the Article III Courts who have knowingly and intentionally swept the glaring Due Process deficiencies, stunning ethical conflicts, lack of quality control, and failure to consistently provide fundamental fairness under their “Ivory Tower carpets” for far too long are going to have to step up and put an end to this parody of justice or accept responsibility for the implosion of the Immigration Courts and Constitutional Due Process that are looming on the horizon.
One thing is for certain: You can’t run a Due Process, fundamentally fair court system under Jeff Sessions. He proved that this week — beyond any reasonable doubt! Anybody who doubts that, isn’t being reasonable — or isn’t paying attention!
Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training Program
Washington, DC
~
Monday, June 11, 2018
Remarks as prepared for delivery
Thank you, James, for that introduction, and thank you for your years of superb service to the Department as an SAUSA, at Main Justice, and now here at EOIR. James has been doing a fabulous job. He understands these issues, knows exactly what our challenges are, and is working steadfastly every day to meet them.
Thank you also to Katherine Reilly, Kate Sheehy, Chris Santoro, Edward So, David Neal, Chief Judge Keller, Lisa Ward, Jean King, Robin Sutman, and all of the leadership team.
It is good to be with you today.
Each one of you plays an important role in the administration of our immigration laws. Immigration judges are critical to ensuring that the Department of Justice carries out its responsibilities under the INA. You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently. As the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.
This responsibility seeks to ensure that our immigration system operates in a manner that is consistent with the laws enacted by Congress. As you know, the INA was established to ensure a rational system of immigration in the national interest.
Of course there are provisions in the INA, consent decrees, regulations, and court decisions where the commonsense enforceability of the plain intent of the INA has been made more difficult. That’s what you wrestle with frequently.
President Trump is correct: Congress needs to clarify a number of these matters. Without Congressional action, clarity and consistency for us is much more difficult.
Let’s be clear: we have a firm goal, and that is to end the lawlessness that now exists in our immigration system. This Department of Justice is committed to using every available resource to meet that goal. We will act strategically with our colleagues at DHS and across the government, and we will not hesitate to redeploy resources and alter policies to meet new challenges as they arise.
Last month, the Department of Homeland Security announced that it will begin to refer as close to 100 percent of illegal Southwest Border crossers as possible to the Department of Justice for prosecution. The Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross the Southwest border unlawfully, then we will prosecute you. It’s that simple.
If someone is smuggling illegal aliens across our Southwest border, then we will prosecute them. Period.
I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to detention centers near the border. That is about a 50 percent increase in the number of immigration judges who will be handling cases at the border.”
All of us should agree that, by definition, we ought to have zero illegal immigration in this country.
Each of us is a part of the Executive Branch, and it is our duty to “take care that the laws be faithfully executed.”
Ours is a public trust.
And the United States of America is not a vague idea. It is not just a landmass or an economy. Ours is a sovereign nation state with a constitution, laws, elections, and borders.
As you all well know, one of our major difficulties today is the asylum process.
The asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing. This is a large part of what has been accurately called, “catch and release”.
Beginning in 2009, more and more aliens who passed an initial USCIS credible fear review were released from custody into the United States pending a full hearing. Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.
The results are just what one would expect. The number of illegal entrants has surged. Credible fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined.
That’s because the vast majority of the current asylum claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by USCIS as a part of their initial screening.
Further illustrating this point, in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.
Now we all know that many of those crossing our border illegally are leaving difficult and dangerous situations. And we understand all are due proper respect and the proper legal process. But we cannot abandon legal discipline and sound legal concepts.
Under the INA, asylum is available for those who leave their home country because of persecution or fear on account of race, religion, nationality, or membership in a particular social group or political opinion. Asylum was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.
Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.
We have not acted hastily, but carefully. In my judgment, this is a correct interpretation of the law. It advances the original intent and purpose of the INA, and it will be your duty to carry out this ruling.
This decision will provide more clarity for you. It will help you to rule consistently and fairly.
The fact is we have a backlog of about 700,000 immigration cases, and it’s still growing. That’s more than triple what it was in 2009. This is not acceptable. We cannot allow it to continue.
At this time, when our immigration system and our immigration judges are under great stress, I am calling on you to use your best efforts and proper policies to enhance our effectiveness. To end the lawlessness and move to the virtuous cycle, we have to be very productive. Volume is critical. It just is. We ask you to evaluate your processes and disposition rates.
We ask each one of you to complete at least 700 cases a year. It’s about the average. We are all accountable. Setting this expectation is a rational management policy to ensure consistency, accountability, and efficiency in our immigration court system. Thank you for working every day to meet and exceed this goal. You can be sure that this administration and this Department of Justice supports you in this critically important and historic effort.
That’s why we are hiring more than 100 new immigration judges this calendar year. And we are actively working with our partners at DHS to ensure that we can deploy judges electronically and by video-teleconference where needed and to obtain appropriate courtroom facilities.
Let’s be clear. These actions will not end or reduce legal immigration. These actions will be directed at reducing illegal immigration. Only Congress can change legal immigration.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to come here. But they must do so according to law.
When we lose clarity or have decisions that hold out hope where a fair reading of the law gives none, we have cruelly hurt many people. As we resolutely strive to consistently and fairly enforce the law, we will be doing the right thing.
The world will know what our rules are, and great numbers will no longer undertake this dangerous journey. The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them.
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It’s all about numbers — volume over justice! What a total farce!
Sessions also lied about the low asylum grant rate. Of cases in which a merits decisions on asylum is actually rendered by an Immigration Judge after hearing, here are the actual asylum grant rates from the EOIR’s own website
Figure 16
Asylum Grant Rate
Grants
Denials
Grant Rate
FY 12
10,575
8,444
56%
FY 13
9,767
8,777
53%
FY 14
8,672
9,191
49%
FY 15
8,184
8,816
48%
FY 16
8,726
11,643
43%
In other words, for the last five years available, nearly half of the asylum applications actually decided on the merits were granted. And, that doesn’t even include individuals granted other types of protection such as withholding of removal and CAT after a merits hearing.
It’s a far cry from the bogus 20% figure Sessions used. In any event, it’s well established law that denial of an asylum application does not in any way show that it was “fraudulent” or “frivolous” as Sessions implies.
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As usual, the ever-amazing Tal Kopan was one of the first to “hit the net running” with her analysis of the Sessions speech to EOIR.
Jeff Sessions primed to overhaul asylum law
By Tal Kopan, CNN
Attorney General Jeff Sessions will announce a major decision that could impact thousands of asylum seekers from Central America on Monday — his latest move to use his unique authority to single-handedly reshape immigration law.
Sessions made the announcement at an annual training conference for the nation’s hundreds of immigration judges, telling them the decision would be coming and reminding them that they will be obligated to follow his interpretation of the law.
Though Sessions did not explicitly name the decision, it is widely expected to be a case involving asylum protections for domestic violence victims. Sessions referred the case to himself earlier this year and invited interested parties to submit briefs. In his remarks, Sessions implied he would be restricting the use of asylum for victims of crime, which would reverse previous court decisions and overrule a significant 2014 Board of Immigration Appeals decision that ruled Central American domestic violence victims who cannot escape their abusive partners can qualify under asylum law for protection in the US.
“Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world,” Sessions said, reiterating the particular requirements of asylum under the law. “Today I will be exercising the responsibility given to me under the (Immigration and Nationality Act), I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”
The ruling and announcement is the latest evidence of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
Sessions also reminded judges that his decision will be final, unless a federal appellate court were to overturn it on appeal.
In addition to impacting domestic violence victims, the case could also have large-scale implications for victims of other forms of crime and violence — rampant in Central America, where a majority of US asylum seekers at the southern border come from.
Related: Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
“In my judgment, this will be a correct interpretation of the law,” Sessions said. “It advances the original intent and purpose of the INA, and it will be your duty, of course, to carry that out.”
According to Tal, the National Association of Immigration Judges (“NAIJ”) immediately criticized Sessions’s overemphasis on numerical quotas that are actually still supposed to be the subject of “good faith” labor negotiations with the NAIJ before going into effect in the Fall.
Nevertheless, Tal’s longer article (linked above) would lead one to believe that many U.S Immigration Judges look forward their new well-defined role as an “asylum denial workforce” working as part of the law enforcement “team” to send vulnerable individuals, including children, back to death, rape, extortion, or constant beatings, in probable violation of international standards, as part of the DHS enforcement effort headed by Sessions.
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
Denying applications based on “precedents” intentionally misinterpreting the law will definitely make dockets move faster and might even allow some Immigration Judges to earn “gold stars” — and perhaps even recognition from the Chief Enforcer himself at next year’s conference — for exceeding their deportation quotas — at least until those pesky Article III Courts get involved.
We’ll see whether the Administration’s policies of intentional cruelty, criminal prosecution, child abuse, and sending folks back to places where their lives will be endangered without fairly considering their claims of protection works as a “deterrent” (never has in the past) or merely diminishes us as a society and a country.
As I always say, “We can diminish ourselves as a nation (and we are), but that won’t stop human migration.”
It’s a far cry from when the late Attorney General Janet Reno used to appear at Immigration Judge Conferences and urge us to do our duty to provide fairness, Due Process, and “equal justice for all.”
Stay tuned for the release of the AG’s decision and more reaction.
Immigration judges are the trial-level judges who make the life-changing decisions of whether or not non-citizens are allowed to remain in the United States. They are facing a virtual mountain of cases: almost 700,000 for about 335 judges in the United States. The work is hard. The law is complicated. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. Because these are considered civil cases, people are not provided attorneys and must pay for one, find a volunteer, or represent themselves.
In a move that the Department of Justice claims is intended to reduce this crushing backlog, the DOJ is moving forward with a plan to require judges to meet production quotas and case completion deadlines to be rated as satisfactory in order to keep their jobs. This misguided approach will have the opposite effect.
One cannot measure due process by numbers. The primary job of an immigration judge is to decide each case on its own merits in a fair and impartial way. That is the essence of due process and the oath of office we take. Time metrics simply have no place in that equation. Quality measurements are reasonable, and immigration judge performance should be evaluated, but by judicial standards, which are transparent to the public and expressly prohibit quantitative measures of performance. The imposition of quotas and deadlines forces a judge to choose between providing due process and pushing cases to closure without considering all the necessary evidence.
If quotas and deadlines are applied, judicial time and energy will be diverted to documenting our performance, rather than deciding cases. We become bean-counting employees instead of fair and impartial judges. Our job security will be based on whether or not we meet these unrealistic quotas and our decisions will be subjected to suspicion as to whether any actions we take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. Under judicial canons of ethics, no judge should hear a case in which he or she has a financial interest. By tying the very livelihood of a judge to how quickly a case is pushed through the system, you have violated the fundamental rule of ensuring an impartial decision maker is presiding over the case.
These measures will undermine the public’s faith in the fairness of our courts, leading to a huge increase in legal challenges that will flood the federal courts. Instead of helping, these doubts will create crippling delays in our already overburdened courts. If history has taught us any lessons, it is that similar attempts to streamline have ultimately resulted in an increase in the backlog of cases.
The unacceptable backlogs at our courts are due to decades of inadequate funding for the courts and politically motivated interference with docket management. The shifting political priorities of various administrations have turned our courts into dog and pony shows for each administration, focusing the court’s scant resources on the cases ‘du jour,’—e.g., children or recent border crossers—instead of cases that were ripe for adjudication.
The solution to the delays that plague our courts is not to scapegoat judges. The solution is two-part: more resources and structural reform. We need even more judges and staff than Congress has provided. Additionally, the immigration courts must be taken out of the Department of Justice, as the mission of an independent and neutral court is incompatible with the role of a law enforcement agency. This latest, misguided decision to impose quotas and performance metrics makes that conclusion clear and highlights the urgent need for structural reform. The measure of a good judge is his or her fairness, not the number of cases he or she can do in a day.
Dana Leigh Marks is president emeritus of the National Association of Immigration Judges and has been a full-time immigration judge in San Francisco since 1987. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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For those of you who don’t know her, my friend and colleague Dana is not just “any” U.S. Immigration Judge. In addition to her outstanding service as a Immigration Judge and as the President of the NAIJ, as a young attorney, then known as Dana Marks Keener, she successfully argued for the respondent in the landmark Supreme Court case INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
That case for the first time established the generous “well-founded fear” standard for asylum seekers over the objections of the U.S. Government which had argued for a higher “more likely than not” standard. Ironically, it is exactly that generous treatment for asylum seekers mandated by the Supreme Court, which has taken more than four decades to come anywhere close to fruition, that Sessions is aiming to unravel with his mean-spirited White Nationalist inspired restrictionist agenda at the DOJ.
Interestingly, I was in Court listening to the oral argument in Cardoza because as the then Acting General Counsel of the “Legacy INS” I had assisted the Solicitor General’s Office in formulating the “losing” arguments in favor of the INS position that day.
Due Process Forever! Jeff Sessions Never! Join the New Due Process Army and stand up against the White Nationalist restrictionist attack on America and our Constitution!
The tragedy is that bad as this sounds, the reality of what’s going on every day in this broken, failed, and disingenuous system is probably much worse than what’s portrayed here.
Yup, we can all chuckle at others’ misfortune. But, if Trump, Sessions, and the White Nationalist restrictionist crowd aren’t removed from office, this will be how all of our rights are treated. Someday, all of us are going to need to rely on our Constitutional rights. And, if Trump & Sessions have their way, you’ll be longing for the “Kiddie Court” rather than the travesty that’s being called “Due Process” in our Immigration Courts.
Harm to the most vulnerable among us is harm to all. Join the New Due Process Army and fight for the real America! Due Process Forever! Trump & Sessions Never!
The Proper Role of Immigration Judges as Asylum Adjudicators
I would like to expand on the topic raised in my response to the BIA’s recent precedent decision in Matter of W-Y-C- & H-O-B-. In the U.S. system, what tensions exist between an immigration judge’s role as an independent judge within an adversarial system, and his or her overlapping role as an adjudicator of asylum claims?
As we all know, the 1980 Refugee Act was enacted to put the U.S. in compliance with the 1951 Convention on the Status of Refugees (to which the U.S. acceded through the 1967 Protocol). For that reason, numerous courts through the years have found the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to provide “significant guidance in construing the Protocol” and a useful instrument “in giving content to the obligations the Protocol establishes,” as the U.S. Supreme Court stated in INS v. Cardoza-Fonseca. The BIA has referenced the UNHCR Handbook in at least ten precedent decisions, as have numerous circuit courts.
Paragraphs 66 and 67 of the Handbook state the following:
66. In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.
67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect… (emphasis added.)
Not surprisingly, this approach is employed by the USCIS Asylum Office. Created in the implementation of the 1990 asylum regulations, the office’s first director, Gregg Beyer, previously worked for UNHCR for more than 12 years. The Asylum Officer Basic Training Manual (“AOBTM”) on the topic of nexus states that although the applicant bears the burden of proving nexus, the asylum officer has an affirmative duty to elicit all relevant information, and “should fully explore the motivations of any persecutor involved in the case.” The AOBTC therefore directs the asylum officer to “make reasonable inferences, keeping in mind the difficulty, in many cases, of establishing with precision a persecutor’s motives.”
The AOBTC also cites the 1988 BIA precedent decision in Matter of Fuentes.1 In that case, the Board held that “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible. However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of” a protected ground.
In Canada, the Immigration and Refugee Board takes the view that “it is for the Refugee Division to determine the ground, if any, applicable to the claimant’s fear of persecution.” The U.S. is unusual, if not unique, among western nations in not also delegating this responsibility to immigration judges. Also, note that the IRB references the “Refugee Division;” like many countries, Canada’s equivalent of immigration courts is divided into immigration and refugee divisions, in recognition of the special obligations and knowledge that asylum determinations require. The U.S. immigration court system does not have a separate refugee determination division; asylum claims are heard by the same judges and under the same conditions as all other types of immigration cases. Furthermore, as noted above, U.S. immigration judges hear cases in an adversarial setting, in which judges assume a passive, neutral role.
The role of asylum adjudicator carries responsibilities that are at odds with the the role of neutral arbiter. Asylum adjudicators are required to share the burden of documenting the asylum claim; the UNHCR Handbook at para. 196 states that “in some cases, it may be for the examiner to use all of the means at his disposal to produce the necessary evidence in support of the application.”2 And, as discussed above, once the facts are ascertained, it is the adjudicator who should identify the reasons for the feared persecution and determine if such reasons bear a nexus to a protected ground.
During the Department of Justice’s asylum reform discussions in the early 1990s, Gregg Beyer stated that the idea of separate asylum judges was considered, but ultimately rejected. To my knowledge, EOIR has never conducted an in-depth analysis of the conflicts between the judge’s responsibilities as an asylum adjudicator and his or her role as a neutral arbiter in adversarial proceedings. I discussed the Board’s incorrect holding in Matter of W-Y-C- & H-O-B- under which genuine refugees may be ordered returned to countries where they will face persecution because the asylum applicants lacked the sophistication to properly delineate a particular social group, a complex legal exercise that many immigration attorneys (and immigration judges) are unable to do. The problem also extends to other protected grounds. Would an unrepresented asylum applicant (who might be a child) understand what an imputed political opinion is? Would most asylum applicants be able to explain that actions viewed as resisting the authority of a third-generation gang such as MS-13 might constitute a political opinion? Regulations should be enacted making it the responsibility of immigration judges to consider these questions. Additionally, immigration judges, BIA Board Members and staff attorneys should be required to undergo specialized training to enable them to identify and properly analyze these issues.
Notes:
1. 19 I&N Dec. 658 (BIA 1988).
2. See also the BIA’s precedent decision in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which I have referenced in other articles.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
He’s speeding up their hearings, and if that leads to expelling exemplary immigrants on whose paperwork the government is sitting—well, that’s tough.
AP Photo/Carolyn Kaster
Attorney General Jeff Sessions speaks during a news conference at the Justice Department
This could be Jeff Sessions’s year.
Not that he wasn’t busy in 2017, a year marked by his rescinding Deferred Action for Childhood Arrivals (DACA), attacking sanctuary cities, reinstating debtors’ prisons, and cracking down on recreational marijuana. Indeed, over these last few months Sessions appears to have been working with the single-minded focus of a man who reportedly came within inches of losing his job in July after falling into President Trump’s bad graces for recusing himself from the Mueller probe.
But 2018 will provide him his best chance yet at Trumpian redemption.
Sessions has long railed against the United States’ “broken” asylum system and the massive backlog of immigration court cases, which has forced immigrants to suffer unprecedented wait times and has put a significant strain on court resources. But the attorney general’s appetite for reform has now grown beyond pushing for more judges and a bigger budget, both largely bipartisan solutions. The past few months have seen Sessions begin to attempt to assert his influence over the work of immigration courts (which, unlike other federal courts, are part of the Executive Branch) and on diminishing the legal protections commonly used by hundreds of thousands of immigrants—developments that have alarmed immigration judges, attorneys, and immigrant advocacy groups alike.
Earlier this month, Sessions announced that he would be reviewing a decades-old practice used by immigration judges and the Justice Department’s Board of Immigration Appeals to shelve cases without making a final ruling. Described by judges as a procedural tool for prioritizing cases and organizing their case dockets, the practice—“administrative closure”—also provides immigrants a temporary reprieve from deportation while their cases remain in removal proceedings. Critics argue that administrative closure, which became far more frequent in the later years of the Obama administration, creates a quasi-legal status for immigrants who might otherwise be deported.
There are currently around 350,000 administratively closed cases, according to according to the American Bar Association’s ABA Journal.
Should Sessions decide to eliminate administrative closures—a decision many observers describe as imminent—those cases could be thrown into flux. The move would be in line with previous statements from various figures in the Trump administration and executive orders signed by the president himself—namely, that no immigrant is safe from deportation; no population is off the table.
Beyond creating chaos for hundreds of thousands of immigrants, the premature recalendaring of cases could also lead to erroneous deportations. For instance, in the case of unaccompanied minors applying for Special Immigrant Juvenile Status, a humanitarian protection granted by Citizenship and Immigration Services, an untimely return to court could be the difference between remaining or being ordered to leave the country. Even if a minor has already been approved by a state judge to apply for a green card, there is currently a two-year visa backlog for special visa applicants from Ecuador, Guatemala, and Honduras and more than a one-year backlog for those from from Mexico. Administrative closures allow these children to avoid deportation while they wait in line for a visa to become available.
But if judges can no longer close a case, they will either have to grant a string of continuances, a time-consuming act that requires all parties (the judge, defendant, and government attorney) to show up to court repeatedly, or simply issue an order of removal—even if the immigrant has a winning application sitting on a desk in Citizenship and Immigration Services. Under the Trump administration, Immigrations and Customs Enforcement has been actively filing to recalendar cases of non-criminals that had been administratively closed for months, including those of children whose applications had already been approved. Now Sessions, who as a senator zealously opposed immigration reforms that would benefit undocumented immigrants, could recalendar them all.
Unshelving hundreds of thousands of cases would also further bog down an already towering backlog of approximately 650,000 immigration court cases, according to Syracuse University’s Transactional Records Access Clearinghouse—a policy result that at first seems antithetical to Sessions’s rhetoric about cutting the backlog and raising efficiency. That is unless, as some suggest, the backlog and efficiency were never really his primary concerns to begin with.
“When [Sessions] says he wants to decrease the court backlog and hire more immigration judges, what he really means is he wants more deportation orders, whatever the cost,” says Heidi Altman, director of policy at the National Immigrant Justice Center.
Removing a judge’s ability to close a case would be the second in a one-two punch aimed at knocking down avenues of relief for cases that remain in the system for long periods of time.
Sessions’s decision to review administrative closure surprised few who had been following his rhetoric over the past few weeks. In a December memo detailing plans to slash the backlog, the attorney general said that he anticipated “clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.” The Justice Department had already largely done away with allowing prosecutors to join in motions to administratively close a case that didn’t fall within its enforcement priorities. Removing a judge’s ability to close a case would be the second in a one-two punch aimed at knocking down avenues of relief for cases that remain in the system for long periods of time.
And it’s unlikely that Sessions will stop there. As attorney general, he is free to review legal precedents for lower immigration courts. In changing precedential rulings, he could do away with a multitude of other legal lifelines essential to immigrants and their attorneys.
. . . .
“Administrative closure makes a good starting point for Sessions, because the courts likely won’t be able stop it,” says Paul Schmidt, a former immigration judge and former head of the Board of Immigration Appeals. “Administrative closure was a tool created by the Justice Department and therefore it can be dismantled by the Justice Department.”
“After all, the bad thing about the immigration courts is that they belong to the attorney general,” Schmidt adds.
Unlike other federal judges, immigration judges are technically considered Justice Department employees. This unique status as a judicial wing of the executive branch has left them open to threats of politicization. In October, it was revealed that the White House was planning on adding metrics on the duration and quantity of cases adjudicated by immigration judges to their performance reviews, effectively creating decision quotas. A spokeswoman for the National Association of Immigration Judges described the proposal as a worrying encroachment on judicial independence. “Immigration judge morale is at an all time low,” says Dana Marks, former president of the association and a judge for more than 30 years. Other federal judges are not subject to any such performance evaluations.
It’s no coincidence that a review of administrative closure was announced just a few months after it was discovered that the Justice Department was considering imposing quotas on judges. Streamlining deportations has proven an elusive goal, even for Sessions: Deportations in 2017 were down from the previous year, according to DHS numbers. Meanwhile, arrests surged—up 42 percent from the same period in 2016. Flooding already overwhelmed immigration courts with even more cases would certainly cause chaos in the short-term, but wouldn’t necessarily lead to deportations by itself. If an end to administrative closures is paired with decision quotas on immigration judges, however, a surge in deportations seems inevitable.”
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Read Manuel’s complete article at the above link.
As I’ve noted before, Due Process clearly is “on the run” at the U.S. Immigration Courts. It will be up to the “New Due Process Army” and other advocates to take a stand against Sessions’s plans to erode Constitutional Due Process and legal protections for immigrants of all types. And don’t think that some U.S. citizens, particularly Blacks, Latinos, and Gays, aren’t also “in his sights for denial of rights.” An affront to the rights of the most vulnerable in America should be taken seriously for what it is — an attack on the rights of all of us as Americans! Stand up for Due Process before it’s too late!
“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.
The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.
An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.
Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.
President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.
One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”
The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.
The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.
‘WOLVES IN SHEEP CLOTHING’
Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.
Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”
“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”
Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.
In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”
The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.
While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.
Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”
Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”
Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”
“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”
In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.
The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.
Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”
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Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”
After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.
The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.
Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.
At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.
I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?
Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.
To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.
So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solutionfor getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?
But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reformsnecessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.
“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “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.”
EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).
Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”
According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).
Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this 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.”
The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.
NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.
This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.
NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).
NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:
Congress can… 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. 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.
The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.
Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.
Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”
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“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing datato hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
“As he awaits his fate in a remote Texas jail, Mr. Gutierrez, 54, remains convinced of the peril he faces if deported to his native country. “My life depends on this [appeal],” he said by telephone in a news conference organized Monday by the National Press Club. “I’m terrified to set foot in Mexico.”
The judge who denied asylum in the case, Robert S. Hough, pointed to an absence of documentary and testimonial corroboration of Mr. Gutierrez’s claim. The woman who relayed word of the alleged death threat did not come forward; neither did Mr. Gutierrez’s former boss at the newspaper for which he worked in Chihuahua. Much of Mr. Gutierrez’s case comes down to his word.
Nonetheless, the judge’s cut-and-dried application of the law fails to take into account conditions in Mexico generally and the peril faced there by journalists in particular. It’s not surprising that Mr. Gutierrez cannot recover copies of his articles, written more than a decade ago for a regional newspaper. Nor is it unusual that witnesses are reluctant to come forward, given the fear with which many Mexicans regard the security forces.
As a U.N. report published this month concluded, citing the deaths, disappearances and attacks on dozens of journalists tallied by Mexico’s Human Rights Commission, “The data . . . presents a picture for the situation of journalists in Mexico that cannot be described as other than catastrophic.” Against that background, it seems cavalier to dismiss the threat Mr. Gutierrez faces should he be deported to Mexico. He should be granted asylum.”
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Read the complete Editorial at the link.
Unfortunately, a “cut and dried application of the law” without proper regard to the facts or reality is a disturbingly accurate snapshot of what all too often happens daily in our Immigration Courts, a “wholly owned subsidiary” of the US Department of Justice and part of the “Trump Conglomerate” (formerly known as the US Government).
Our failing US Immigration Court system and its aggravation by AG “Gonzo Apocalypto’s” oft-expressed hostility to immigrants, asylum, the rule of law (except his 1950s “Jim Crow” views on the law and how it should be a tool for injustice and advancing White Nationalism), lawyers, Latinos, Mexicans, and the press has become an almost daily topic for major editorial boards. At least someone (other than me) is watching and documenting as this mockery of American justice unfolds before us.
In particular, too many U.S. Immigration Judges are tone-deaf to Mexican asylum claims, not wanting to be accused of “opening the floodgates” ( a concept that is nowhere to be found in the actual law) and knowing that “Gonzo” wants lots of “quick removals” rather than asylum grants. Additionally, the only administrative check on the Immigration Judges’ authority is a weak Appeals Board that never “calls out” overly restrictive Immigration Judges by name and seldom publishes precedents granting asylum. Truly, a prescription for a “Due Process Disaster!”
Judge Hough seems to have forgotten that under the law:
”Corroborating evidence” can only be required if it is “reasonably available;”
Testimony may be corroborated by country condition information describing the same abuses that the applicant claims;
The standard for granting asylum is a generous “well-founded fear” or “reasonable likelihood” of future harm which can be “significantly less than probable — as little as a 10% chance can suffice;
Asylum applicants are supposed to be given the “benefit of the doubt” in recognition of the evidentiary challenges of providing proof of persecution and the difficulties of relating traumatic events in the past.
It remain to be seen whether the Board of Immigration Appeals, EOIR’s “Appellate Court,” will correct Judge Hough’s life-threatening errors and, further, issue a strong precedent on asylum for foreign journalists (traditionally one of the most vulnerable and persecuted groups) to prevent further miscarriages of Justice such as this. Such a precedent would also discourage the DHS from continuing to abuse our system by pushing for removal (and needless detention) in cases such as this where a grant of asylum at the DHS Asylum Office or at the hearing following the testimony would be the correct result.
Or, will the next major editorial describe and decry Mr. Gutierrez’s death in Mexico!
In a well-functioning justice system, this case should have been a “Short-docket, No-brainer Grant.” But, Gonzo Apocalypto seeks to use the US Immigration Courts as an extension of DHS enforcement rather than, as they were intended, as Courts guaranteeing fairness, Due Process, and equal justice for all! We need change. Lots of it!
[NOTE: For those interested, Judge Hough apparently has not decided enough asylum cases on the merits in El Paso to be listed on the statistical profile of asylum outcomes maintained by TRAC Immigration.]
“The broader dysfunction in America’s immigration system remains largely unchanged. Federal immigration courts are grappling with a backlog of some 600,000 cases, an epic logjam. The administration wants to more than double the number of the 300 or so immigration judges, but that will take time. And its recent moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.
Mr. Trump’s campaign bluster on deportation was detached from reality. He said he’d quickly deport 2 million or 3 million criminal illegal immigrants, but unless he’s counting parking scofflaws and jaywalkers, he won’t find that many “bad hombres” on the loose. In fact, legal and illegal immigrants are much less likely to end up in jail than U.S. citizens, according to a study by the Cato Institute.
The president’s sound and fury on deportation signify little. He has intensified arrests, disrupting settled and productive lives, families and communities — but to what end? Only an overhaul of America’s broken immigration system offers the prospect of a more lasting fix.”
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Read the full article at the link.
The Post also points out the damage caused by Trump’s racist “bad hombres” rabble rousing and the largely bogus nature of the Administration’s claims to be removing “dangerous criminals.” No, the latter would require some professionalism and real law enforcement skills. Those characteristics are non-existent among Trump Politicos and seem to be in disturbingly short supply at DHS. To crib from Alabama GOP Senator Richard Shelby’s statement about “Ayatollah Roy:” Certainly DHS can do better than Tom Homan.
And certainly America can do better than a US Immigration Court run by White Nationalist Attorney General Jeff “Gonzo Apocalypto” Sessions. Gonzo’s warped concept of Constitutional Due Process is limited to insuring that he himself is represented by competent counsel as he forgets, misrepresents, misleads, mis-construes, and falsifies his way through the halls of justice.
Jeff Sessions does not represent America or American justice. The majority of American voters who did not want the Trump debacle in the first place still have the power to use the system to eventually restore decency, reasonableness, compassion, and integrity to American Government and to send the “Trump White Nationalist carpetbaggers” packing. The only question is whether or not we are up to the task!
