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

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

Maria Sacchetti reports for the Washington Post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Traditional federal judges are not subject to quotas.

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

10-13-17

 

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

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

Noah Lanard reports for Mother Jones:

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

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

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

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

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

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

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

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

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

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

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

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

PWS

10-10-17

 

EOIR ISSUES “OPPM” ON CONTINUANCES — APPARENT ATTEMPT TO SHIFT FOCUS AWAY FROM POLITICALLY MOTIVATED “ADR” THAT IS CAUSING MASSIVE BACKLOGS!

Here is the text of the OPPM:

oppm_17-01

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My Comments:

  1. There are lots areas where U.S. Immigration Judges, particularly new ones, could use training. Applying the asylum standards of proof set forth in Cardoza-Fonseca and Mogharrabi, properly applying the presumption based on past persecution in 8 CFR 1208.13, adjudicating “other serious harm” claims, insuring that requests for corroboration are “reasonable,” making credibility determinations on the basis of the record as a whole and all relevant factors, and understanding and properly applying the complex concepts of “divisibility,” categorical approach,” and “modified categorical approach” in criminal-related cases immediately come to mind. Adjudicating motions to continue doesn’t jump out at me as an area where guidance is particularly necessary. In fact, I never really met an Immigration Judge who didn’t have a pretty good sense of what the criteria were for continuances.
  2. The OPPM blows by the real reason why the dockets are a mess: politically motivated “Aimless Docket Reshuffling” (“ADR”) caused by ever changing political priorities in Immigration Court. Shifting Immigration Judges from previously-scheduled “Merits Hearings” to “Master Calendars” for recently arrived aliens, detainees who needn’t be in detention, and juveniles, has resulted in perhaps hundreds of thousands of “ready for trial” cases being “orbited” to largely imaginary merits hearing dates years from now.
  3. The OPPM falsely suggests that Immigration Judges have control over their dockets. But, individual Immigration Judges were stripped of any real semblance of docket control years ago. That’s the major problem causing backlogs. It’s not uncommon for Immigration Judges to find themselves detailed to other courts or shifted to other priorities without any meaningful input and sometimes with minimal advance notice. Ask the many private attorneys in New York, Chicago, and other major locations who arrive at long-ago-scheduled merits hearing, witnesses in tow, only to find out the Immigration Judge has been “reassigned” without advance notice, and that their cases are likely to go back to Master Calendar again for assignment of yet another Merits Hearing date with another judge years in the future. And, given the documented inconsistencies in adjudication results, particularly in asylum cases, among U.S. Immigration Judges, don’t think that re-assignment to a “new” Immigration Judge is a “neutral” occurrence. In all too many cases, it’s “outcome determinative.”
  4. The OPPM falsely suggests that continuances are largely a “scheme” by private attorneys to “game the system.” Undoubtedly, respondents sometimes do benefit by delays — many of which are actually caused not by them but by the internal procedures of EOIR and DOJ. They just take advantage of that which the system at the administrative/political level of DOJ/EOIR offers them. But, there are probably just as many private attorneys who have been trying for years to get their clients’ cases to trial, only to be “stiffed” by the politicos ultimately in charge of the system. Individual Immigration Judges are more often than not merely the “bearers of bad news” over which they have no personal control (but do get some of the flack).
  5. The OPPM appears to be directed at overburdened, overworked, under-appreciated NGOs who have been “hosed around” by the politicos at DOJ and EOIR Headquarters. They have been forced to race to cover “new priority” cases at the border, in detention, or on accelerated dockets while back at the “home court” their non-detained “ready for trial” cases are being “orbited” to dockets years in the future. Moreover, it is well-known the there is a high rate of turnover among NGO and pro bono group attorneys. Therefore the DOJ/EOIR tactics are designed to “wear down” pro bono representatives, thus forcing individuals to abandon representation or go unrepresented. This, in turn, all but guarantees failure of their claims. Indeed, the recent NWIRP litigation has made it clear that DOJ and EOIR are willing to bend the existing regulations to threaten or penalize those trying to provide pro bono assistance. http://immigrationcourtside.com/2017/07/29/eoir-pro-bono-representation-u-s-district-judge-richard-m-jones-rips-eoirs-violation-of-1st-amendment-common-sense-nwirp-v-sessions-wd-wa/.
  6. The OPPM also falsely suggests that DHS only rarely asks for continuances. Not true! DHS has a steady stream of reasons for requesting continuances including such “administratively fixable” things as: lost or missing files, sick attorneys, shortage of staff, missing fingerprints, changing priorities, ongoing investigations, new charges of removability, training, details, need to review exhibits lost in the mail, etc. Moreover, as recently documented by TRAC, the Trump Administration’s abandonment of a sensible use of “prosecutorial discretion” to get low priority cases off the Immigration Court docket is compounding the backlog issue. Additionally, the reported DHS unwillingness to stipulate to issues and grants of relief has caused many cases that could have been completed at Master Calendar or on “short docket” to be set for 3-4 hour merits hearing blocks instead.
  7. Oh, and lets not forget that docket problems are also aggravated by the byzantine, glacial, yet one-sided hiring process for Immigration Judges developed and administered by DOJ largely in response to political abuse of the hiring system by the Bush-era DOJ. Additionally, DOJ & EOIR have failed to anticipate problems caused by predictable loss of experienced judges to retirement, and they have failed to fill the additional positions allocated by Congress in a timely fashion.
  8. NOTE TO REPORTERS IN THE AUDIENCE: Don’t be fooled or “taken in” by this smokescreen. Faced with exposure of chronic problems, it’s a “bureaucratic norm” within DOJ and EOIR, as well as a specialty of the Trump Administration, to attempt to shift attention and blame elsewhere. Don’t fall for it! The “real story” here is in the absolute mess that political meddling at the DOJ has made, and continues to make, out of sound docket management and due process in the U.S. Immigration Courts and the unwillingness and inability of the politicos to fix the problems they have created or aggravated. No OPPM or series of “administrative band aids” is going to fix this broken system. We need an Article I U.S. Immigration Court now!
  9. Other than that, I loved the OPPM.

PWS

08-02-17