MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!

https://www.reuters.com/investigates/special-report/usa-immigration-asylum/

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

“They fled danger at home to make a high-stakes bet on U.S. immigration courts

Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.

Filed

OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.

They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.

Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.

Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.

That’s when their fates diverged.

Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.

The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.

Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.

The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.

Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.

Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.

In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.

Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.

Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.

The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.

The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.

About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.

“GROSS DISPARITIES”

Of course, other factors influence outcomes in immigration court.  For example, U.S. government policy is more lenient toward people from some countries, less so for others.

Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.

Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.

The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors.  The longer a judge has been serving, the more likely that judge is to grant asylum.

“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco

The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.

“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.

Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.

Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.

Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.

The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.

The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.

Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)

In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”

Video: High-stakes game of chance in U.S. immigration courts

CRISIS AT THE BORDER

In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.

Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.

Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.

Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.

The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.

Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.

The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.

“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”

The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.

One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.

“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.

“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”

She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.

“NO POLICE HERE”

Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.

Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”

Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”

The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”

Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.

There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.

After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.

Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.

“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”

Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.

Volunteer lawyers helped the women prepare and submit their applications for asylum.

In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.

“ASYLUM FREE ZONES”

Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.

People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.

The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.

The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”

Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.

The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.

In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.

In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.

From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.

The agency does not identify judges who were the subjects of complaints.

Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”

DAY IN COURT

Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.

In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.

Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.

In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.

After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.

Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.

Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness.  As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.

Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”

The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.

Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”

“SOMEONE WANTS TO KILL THEM”

Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”

Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.

Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”

Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.

Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.

In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.

Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.

Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.

“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”

Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.

The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.

Additional reporting by Gustavo Palencia and Kristina Cooke

U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.

More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.

The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.

The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.

Reade Levinson

Heavy Odds

By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.

Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:

http://www.reuters.com/trump-effect/immigration

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Great reporting by Mica and her team!

Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”

It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.

PWS

10-17-17

 

ASSEMBLY LINE “JUSTICE” IS “INJUSTICE” — U.S. Immigration Judges Are NOT “Piece Workers,” & Fair Court Decisions Are Not “Widgets” That Can Be Quantified For Bogus “Performance Evaluations!” — Are Three Wrong Decisions “Better” Than One Right Decision?

http://immigrationimpact.com/2017/10/13/doj-immigration-judges-assembly-line/

Katie Shepherd writes in Immigration Impact:

“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.

As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.

This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.

If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.

The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.

The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”

Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”

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The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.

It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.

The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.

How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process

When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?

Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.

In U.S. Government parlance, there’s a term for that:  fraud, waste, and abuse!

PWS

10-17-17

NICKOLE MILLER IN THE WASHPOST: The Truth About Vulnerable Asylum Seekers Refutes Sessions’s False Narrative!

Safari – Oct 16, 2017 at 10:17 AM

Inaccurate claims from Mr. Sessions

The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.

Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.

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Nickole speaks truth.  Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.

Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.

Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.

In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant.  This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”

Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow  at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.

I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials. 

PWS

10-16-17

COURTSIDE BRINGS YOU “LAW YOU CAN USE!” – Hon. Jeffrey Chase Tells “Do’s and Don’t’s” Of Challenging CREDIBILITY On BIA Appeals! EXTRA BONUS! NEW PWS COMMENTARY: Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

 

https://www.jeffreyschase.com/blog/2017/10/12/challenging-credibility-findings-before-the-bia

Jeffrey writes:

Challenging Credibility Findings Before the BIA

“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft.  Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining  credibility.  These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes.  The following are some thoughts on strategy when appealing credibility findings to the Board.

1. Don’t offer alternative interpretations of the record.

You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record.  If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently.  Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”  Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

2. Does the record support the IJ’s finding?

On occasion, the discrepancy cited by the IJ is not found in the transcript.  IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated.  For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says.  It is worth reviewing the record carefully.

3. Does the REAL ID Act standard apply?

The REAL ID Act applies to applications filed on or after May 11, 2005.  With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date.  However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard.  In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard.  For example, did the IJ rely on non-material discrepancies to support the credibility finding?  If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.

4. Did the IJ’s decision contain an explicit credibility finding?

Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”  See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief).  Therefore, review the decision carefully to determine if an explicit credibility finding was made.  In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility.  In such cases, argue on appeal that the statutory presumption of credibility should apply.

5. Did the credibility finding cover all or only part of the testimony?

As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition.  A respondent may be credible as to parts of his or her claim, but incredible as to other aspects.  There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus.  However, there are variations in the application of the doctrine among the circuits, and there are exceptions.  For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility.  However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.”  The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding).   Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony.  If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.

6. Did the IJ rely on a permissible inference, or impermissible speculation?

In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation.  The court cited earlier case law stating that “an inference is not a suspicion or a guess.”  Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.”  Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.

7. Did the IJ permissibly rely on an omission under applicable circuit law?

There is a body of circuit court case law treating omissions differently than discrepancies.  For example, several circuits have held that as there is no requirement to list every incident in the I-589,  the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility.  Look to whether the omission involved an event that wasn’t highly significant to the claim.  Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country.  Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report.  See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.

8.  Was the respondent provided the opportunity to explain the discrepancies?

At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies.  The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent.  See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).

9. Did the “totality of the circumstances” support the credibility finding?

Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.”  INA sections 208(b)(1)(B)(ii), 240(c)(4)(C).  The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding.  For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”

Copyright 2017 Jeffrey S. Chase.  All rights reserved.”

REPRINTED WITH PERMISSION

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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.

Great stuff, Jeffrey!  I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!

One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.

But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.

Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!

Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.

On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.

This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.

I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.

He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!

So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.

Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.

Remember,”as you did it to one of the least of these my brothers, you did it to me.”  Gonzo’s going to have some ‘splainin top do at some point in the future!

Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!

 

PWS

10-14-17

 

 

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

 

AMERICA THE UGLY: THESE WOMEN SURVIVED DOMESTIC ABUSE, FLED TO THE US SEEKING REFUGE, WERE IMPRISONED IN THE “AMERICAN GULAG,” RAILROADED THROUGH SESSIONS’S KANGAROO COURTS WITHOUT DUE PROCESS, AND NOW FACE RETURN TO MORE ABUSE AND POSSIBLY DEATH – IS THIS THE AMERICA YOU WANT TO LIVE IN? IS THIS THE “LEGACY” YOU WANT TO LEAVE TO FUTURE GENERATIONS?

The well-respected Women’s Refugee Commission just issued Prison For Survivors, a stunning indictment of the Trump Administration’s plans for a New American Gulag and “Gonzo” Immigration Enforcement intended to punish asylum seekers for asserting their statutory and Constitutional rights to protection.

Full report:

https://www.womensrefugeecommission.org/rights/resources/document/download/1528

Fact sheet:

Prison-for-Survivors-Oct2017-Fact-Sheet

“Prison for Survivors
By Katharina Obser, Senior Program Officer at the Women’s Refugee Commission
Earlier this year, a woman named Clara arrived at the United States border seeking protection from gender-based harm she faced in West Africa. She had endured an arduous journey trying to reach the U.S. border, where officials registered her claim for asylum. Rather than release her to pursue her case, however, officials sent Clara into the vast network of immigration detention facilities across the U.S. Since arriving in this country, she has been treated like a criminal, shackled and transferred multiple times between different detention facilities, awaiting a final decision on her request for protection that will determine her fate.
Alarmed at the increase in the detention of women seeking asylum, the Women’s Refugee Commission (WRC) set out to tell the story of what was happening to women like Clara who came to the U.S. seeking protection under our asylum laws. When we began our research, in 2016, the Obama administration had been prioritizing the detention of border crossers — regardless of any humanitarian consideration. Asylum seekers who crossed the border ended up in detention, often with no hope for release unless they could pay increasingly high bonds, find an attorney to represent them, or both. The Trump administration has only made the situation worse for those seeking asylum, adding as enforcement targets countless other immigrants already living in the U.S. A whole disturbing new chapter is beginning in immigration detention, one that exacerbates the inhumanity and ineffectiveness of our current immigration system.
My colleagues and I spoke with approximately 150 women in detention, nearly all of whom were seeking asylum in the U.S. In the seven detention centers we visited, we heard about women who had clearly been traumatized by their experience of coming to the U.S. expecting protection but, instead, found themselves in jail, deprived of their rights and sometimes separated from their children. I heard story after story of vastly deficient conditions and inadequate medical treatment made even more difficult by a fundamental inability to navigate an immigration case because it is all but impossible to do so from detention without an attorney. Imagine being locked up after fleeing for your life and then not being able to communicate your needs because no interpreter is available. Women reported being shackled while in transit, for hours on end without a break. For example, imagine what it was like for Clara, who like other women reported being shackled while in transit when outside the facility, in her case when coming back from a painful medical procedure
Many of the women we spoke with felt — as anyone would — humiliated at having virtually no privacy when using the toilet in front of others in their dorms, being forced to wear used underwear that was often visibly stained, or having insufficient access to sanitary napkins. “I don’t have money to buy pads,” Iliana told us at the Mesa Verde Detention Center in Bakersfield, CA. “I would rather use that money to call my kids.”
The experiences these women shared with my colleagues and me took place against a backdrop of an immigration detention system that continues to be fueled by political motivations and profit-driven decisions and that has seen a dramatic rise in the proportion of women in ICE detention. In 2009, approximately nine percent of those in ICE detention were adult women. In April 2016 that proportion had grown to 14.6 percent (including in U.S. Immigration and Customs Enforcement’s family detention centers). At the same time, the number of women and girls going through an initial asylum screening — likely from detention — nearly quadrupled between 2013 and 2016. The detention system as a whole grew from 34,000 detention beds in early 2016 to over 40,000 detention beds by the end of that year. Now, the Trump Administration is proposing to expand the system to more than 50,000 beds while simultaneously rolling back key detention standards.
As the 150 women who spoke to my colleagues and me make clear, the U.S. immigration detention system is in dire need of fundamental reform. A vital part of that reform needs to include an assurance from the U.S. Department of Homeland Security that immigration detention facility standards are universally strong and that facilities are actually held to account when those standards are not meaningfully implemented.
Yet, the system continues to fail. Just this week, several civil and human rights organizations, including WRC, filed an administrative complaint with DHS on behalf of women who are or were detained by ICE, women who received grossly inadequate medical care and treatment, exacerbating the trauma that many already experience in detention.
Unfortunately, eliminating the indignities of the current system will not fully address the despair that asylum-seeking women experience when facing the unbelievable cards stacked against them because of their detention. “It’s pointless,” said Clara. “It’s just punishment. The U.S. should just say it’s not accepting refugees.”
The Trump administration and Congress face a choice. Continue to feed more money into a broken immigration detention system that criminalizes and demoralizes vulnerable women immigrants and refugees, or direct ICE to make more humane and smarter choices about immigration enforcement that include release or community support for those seeking asylum in the U.S. Only one choice proves to Clara and so many others like her that, ultimately, the U.S. still does respect the right to seek asylum.”

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Sorry, Katharina, but the Trump Administration has no intention of being deterred by the law, Constitution, or human decency from turning the U.S. into a third world country. And so far, most Article III Courts have simply looked the other way rather than taking on these clearly unconstitutional practices (which, I might add were also carried out by the Obama Administration which also had little regard for the lives or rights of women and children seeking protection). After all, it’s not the Article III Judges’ daughters and granddaughters who are being intentionally abused by the U.S. immigration authorities with a green light from a complicit Congress.

PWS

10-10-17

BREAKING: TAL KOPAN AT CNN: REBUTTAL — DOJ/EOIR CLAIM (WITHOUT MANY SPECIFICS) THAT “SURGE’ OF DETAILED JUDGES TO S. BORDER INCREASED OVERALL PRODUCTIVITY BY 2,700!

http://www.cnn.com/2017/10/04/politics/immigration-courts-judges/index.html

Tal reports:

“Washington (CNN)Sending immigration judges to the border has resulted in thousands of more cases being handled, the Justice Department announced Wednesday, though a substantial backlog in the immigration courts remain.

The Justice Department released new statistics on Wednesday touting the effects of reassigning more than 100 immigration judges to the southern border, saying it has resulted in 2,700 more cases being completed than would have otherwise.
The Executive Office for Immigration Review, which manages the Justice Department’s immigration court system, estimated that the judges moved to the border completed significantly more cases than if they had remained at home, and completed 21% more cases than judges historically assigned to those areas as their home courts.
Still, the 2,700-case-increase remains a drop in the bucket compared to the backlog in the immigration courts, which are separate from the broader criminal justice and civil law system and have different rules.
According to data from Syracuse University’s TRAC system, the authority for tracking the backlog, there were more than 630,000 cases pending for fiscal year 2017 through the end of August, with more than 100,000 each in Texas and California.
The backlog of pending cases is a major contributor to issues with immigration enforcement and illegal immigration. When undocumented immigrants are caught and processed to have their cases adjudicated, they can receive court dates years in the future. Unable for legal and resource reasons to detain people indefinitely, the government paroles many of those individuals until their court dates, leaving them to establish lives in the US for years before potentially being ordered to be deported.
DOJ released the statistics on the heels of an investigation by Politico Magazine that found some reassigned judges with unfilled dockets and little to do. Citing internal DOJ documents obtained by a Freedom of Information Act request as well as judge interviews, Politico Magazine reported underworked judges and 22,000 postponed cases in their home courts.
Wednesday’s announcement seemed to rebut that report, citing progress the Justice Department had seen made.
“EOIR is pleased with the results of the surge of immigration judges to detention facilities and the potential impact it has on the pending caseload nationwide,” said acting Director James McHenry in a statement. “The Justice Department will continue to identify ways in which it can further improve immigration judge productivity without compromising due process.”
President Donald Trump’s executive orders have called for dealing with the bottlenecked immigration courts, including by reassigning judges and hiring more judges and attorneys. His administration is also looking at whether technology, such as video conferencing, can help.”
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Without actually seeing the raw data, which apparently has not yet been released to the public, it’s hard to assess the accuracy of the DOJ/EOIR “victory dance.” So far, all of these “improvements” do not seem to have resulted in a decrease in overall Immigration Court backlogs. And, the “technology'” of video conferencing, cited by Director McHenry,  is hardly “new” even at EOIR. For example, the Arlington Immigration Court has been doing all detained cases by televideo since approximately 2004. So, it’s difficult to see how “televideo technology” is going to make a material dent in the administrative problems facing the Immigration Courts. But, we’ll see. If nothing else, seems that the reports on ADR and details “got the attention” of the folks at DOJ and Falls Church.
And, even assuming that these stats eventually support EOIR’s claim, it still neither explains nor justifies detailing Immigration Judges to locations where they were not fully occupied at a time when the backlog was building.
Stay tuned!
PWS
10–04-17

 

NBC4 NY: FRAUD, WASTE, & ABUSE AT USDOJ — “ADR” EXPOSED! — TRUMP ADMINISTRATION KNOWINGLY RAN UP U.S. IMMIGRATION COURT BACKLOGS WITH UNNEEDED REASSIGNMENT OF IMMIGRATION JUDGES TO S. BORDER — DOJ Politicos Caused 276% Jump In NY Court Adjournments! — Then, DOJ Tried To Cast False Blame On Immigration Attorneys, Judges, & Obama Administration For Wasteful Adjournments That Sessions’s Politicos Had ORDERED — More Of My Interview With NBC Investigative Reporter Jodie Fleischer As Nationwide Expose Widens! — Stop The Abuse Of Due Process & Public Purse For Political Ends! — America Needs An Independent U.S. Immigration Court NOW!

Here’s the TV clip:

http://www.nbcnewyork.com/news/local/Immigration-Court-New-York-Judge-Investigation-448498463.html

Here’s the story:

As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court

By Chris Glorioso, Dave Manney, Erica Jorgensen and Evan Stulberger

Documents from the Trump administration show the president’s plan to ship more immigration judges for temporary assignments in border states is encountering a fundamental problem: there isn’t enough work for all the new judges to do.
According to an assessment of “Surge Hearing Locations,” dated April 4, 2017, the Department of Justice found six of the 17 immigration courts receiving transferred judges could not give those judges enough work to support a full docket.
INVESTIGATIVE’Phantom’ Judges Cause Confusion in NYC Immigration Court
In the assessment and supporting documents, DOJ staffers wrote about an immigration court in Karnes, Texas, where there was “concern regarding the lack of filings to sustain details from other courts”

Immigration: Crisis in the Courts
An overview on how immigration judges are struggling with a punishing backlog that in many cities is pushing cases far into the future, slowing deportations and leaving families in limbo.

The same assessment says another court in Texas’s Prairieland Detention Center “is not receiving enough cases to truly fill a docket or even come close to it.”
At the court inside Texas’s Dilly Family Residential Center, DOJ staffers wrote “the one judge detailed there is not occupied.”

At New Mexico’s Cibola County Detention Center, DOJ staffers found the caseload “has not been sufficient to keep the two immigration judges assigned to this docket occupied.”

Staffers also noted two empty courtrooms at New Mexico’s Otero immigration facility — and concluded there were “insufficient caseloads for further deployments.”

Scheduling records show the Justice Department repeatedly assigned five transferred judges to the immigration court in Louisiana’s LaSalle Detention Facility, even though an assessment of the court found “at this time there is not enough work for five judges. There is enough work for a reasonable docket and three judges.”

The report went on to conclude that inefficient transferring of detainees often means “there is very little work for a detailed judge to complete.”

In most cases, the transferred judges spend two weeks to a month hearing cases in out-of-state court.

The Department of Justice declined to comment for this story, but in response to a previous inquiry by Politico, an agency spokesman said “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process.”

While transferred judges may have had light workloads when they arrived in some of the border state courts, there is evidence the dockets they left behind suffered in their home courts.

A joint analysis by the News 4 I-Team and Telemundo 47 Investiga found case adjournments in New York City’s immigration court went up 276 percent — from an average of 139 adjournments in the three months before the judge transfers began, to 522 in the three months after judge transfers began.

Despite that, the Trump administration has increased its target from 50 judge reassignments, to at least 137 nationwide. Nineteen New York City immigration judges — more than half of the city’s 32-judge staff – participated in the temporary transfer program.

Olga Byrne, an advocate for refugees at Human Rights First, a nonprofit that represents asylum-seekers in court, said immigration attorneys at her organization have noticed the spike in adjournments and questioned whether judicial assignments border state assignments are worth the trouble.

“We’ve been in touch with a couple of judges who have expressed a lot of frustration about being sent to a detention center where they could take a long lunch break,” said Byrne. “They had only a few cases to consider for a whole week and yet they had to defer hundreds of cases from their docket in their home court.”


But it is clear the Trump Administration knew its decision to deploy more judges to border states would likely have negative impacts on dockets those judges leave behind in their home states.
In response to questions from U.S. Senate staffers, a DOJ memo concedes that “it is likely that the case backlog will increase for the locations from which an Immigration Judge is assigned.”

In New York City alone, there are more than 82,000 immigrants waiting for a court hearing. The average wait time is north of two and a half years. Nationwide, the immigration case backlog stands at more than 617,000.
Rep. Adriano Espaillat (D – Upper Manhattan), who came to America as an undocumented immigrant, said he fears the Trump administration is over-staffing border state courts to rapidly deport current border-crossers, while ignoring the population of non-detained immigrants who’ve been living and working in America’s big cities, hoping for a shot at citizenship for years.
“By shifting judges to the border, they are in fact maybe predicting that there will be lots of cases before them in those jurisdictions,” Espaillat said. “I am concerned this is part of a greater effort to put together a deportation machine – and proceed to arrest and deport thousands of people who are undocumented.”

This isn’t the first time a presidential initiative has been criticized for mucking up immigration court schedules and exacerbating the nationwide case backlog.
During the Obama Administration, the Justice Department launched an effort to prioritize court hearings for unaccompanied minors who enter the country illegally.

Byrne says that too was a political decision which negatively impacted the court’s ability to handle thousands of older cases languishing in the backlog.
“It’s not a new thing that they are basically fulfilling political objectives with the way that the immigration court dockets are managed,” Byrne said. “I think we should be equally critical of both [the Trump and Obama administrations] for using the immigration court to fulfill political objectives rather than focusing on making that court system work well and efficiently.”

 

Source: I-Team: Immigration Judges Sent to Courts With ‘Very Little Work’ – NBC New York http://www.nbcnewyork.com/investigations/Immigration-Court-New-York-Judge-Investigation-448498463.html#ixzz4uXiMR2xJ
Follow us: @nbcnewyork on Twitter | NBCNewYork on Facebook“

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To put this in context, during this massive abuse of the US Immigration Courts at the direction of Sessions and his incompetent politicos at the DOJ, the Chief Immigration Judge issued the notorious “Continuance Policy.”  That document not not very subtilely implied that unjustified continuance requests by private attorneys (all of them overburdened by the effects of ADR, and many working on a pro bono or “low bono” basis) and laxity in granting continuances by overwhelmed and demoralized U.S. Immigration Judges were major contributing factors in increasing backlogs. Nothing could be further from the truth!

In fact, conscientious Immigration Judges and dedicated private attorneys are the only ones trying to make this broken system work and to maintain at least a semblance of due process. Their main obstacles: improper politically-motivated interference from the DOJ and poor administration and failure to stand up to the politicos by out of touch bureaucrats at EOIR Headquarters in Falls Church who are afraid to “blow the whistle”because they value their jobs over due process. 

What kind of incompetents would draw the bulk of unneeded judicial details from what are known to be the most seriously backlogged Immigration Courts in the US, such as New York and Arlington? What type of incompetents would “study” the impact and need for the details after the fact, rather than carefully planning in advance? Assuming they were necessary (which they weren’t) why weren’t judicial details drawn from among the Assistant Chief Immigration Judges in Falls Church Headquarters who are never assigned actual cases? They, actually have time on their hands. And why does a system in crisis with inept management have highly-paid bureaucratic administrators like the ACIJs who never do any real judging? What makes a person a “judge”if he or she never “judges” anything?

Yes, as I’ve stated before, the Obama Administration enforcement policies and political interference from the Obama DOJ helped drive the backlogs to new heights. But, after taking over an obviously broken system, rather than doing the right thing and fixing the Immigration Courts with bipartisan legislation to create an independent Immigration Court System, with adequate resources, professional court administration, and freedom from political interference in its due process functions, the Trump Administration intentionally made things much, much worse! More judges have resulted in more backlogs because of politicized, incompetent judicial administration and poorly designed enforcement policies at DHS. If that doesn’t tell you something is seriously wrong, what will?

PWS

10-04-17

 

 

 

 

POLITICO EXPOSES SHOCKING FRAUD, WASTE, & ABUSE IN SESSIONS’S U.S. IMMIGRATION COURTS — POLITICALLY DRIVEN “ADR” FUELS UNMANAGEABLE BACKLOGS WHILE DOJ TRIES TO FOB OFF BLAME ON HARD WORKING ATTORNEYS AND US IMMIGRATION JUDGES — DUE PROCESS MOCKED & DENIED — GOP-LED CONGRESS AWOL AS DOJ SQUANDERS TAXPAYER FUNDS & ASKS FOR MORE! — JUDGES FORCED TO LEAVE BACKLOGGED DOCKETS TO TWIDDLE THUMBS AND READ NEWSPAPERS AT BORDER — INCOMPETENT DOJ POLITICOS ALLOWED TO REARRANGE COURT DOCKETS WHILE LOCAL JUDGES IGNORED — WHEN WILL THIS ABUSE END! — Plus, I Take On Former Obama Official Leon Fresco For His Tone Deaf Dissing Of Vulnerable Migrants Seeking (But Not Finding) Justice In Trump’s America!

ADR = AIMLESS DOCKET RESHUFFLING

http://www.politico.com/magazine/story/2017/09/27/trump-deportations-immigration-backlog-215649

Meredith Hoffman reports for Politico:

“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.

As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.

But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.

“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”

Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.

In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well as take some pressure off the currently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.

According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.

“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.

Her three colleagues at the facility who had also been ordered there by the DOJ were no busier. One who had been sent to Otero previously told her the empty caseloads were normal.

“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”

***

On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”

The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.

But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centers as offering inadequate work for their visiting justices.

“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.

One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.

The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”

The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”

Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.

Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)

When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.

Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”

More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.

The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.

The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied that the deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year, and that more than 90 percent of cases by “surge” judges had led to deportation orders.

But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.

“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, is the administration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.

***

Not everyone thinks sending judges to the border is a bad idea.

“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.

Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”

The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”

Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”

But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”

Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.

The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.

“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.

But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation. “They’re basically giving amnesty ironically to the non-detained docket.”

“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”

Meredith Hoffman is a freelance journalist who who has covered immigration for AP, Rolling Stone, the New York Times, and VICE.
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Thanks, Meredith, for this very timely article that ties in nicely with the recent NBC 4 I-Team series on the unmitigated mess in the U.S. Immigration Courts and how Jeff Sessions’s xenophobia, patent disregard for Due Process, and gross mismanagement of the U.S. Immigration Courts is ruining lives and threatening the very underpinnings of the American Justice system.It would be nice to think that someone or somebody would hold this “Swamp Dweller” accountable for his lawless actions. But, to date, that seems unlikely as long as the GOP is in power.The judgment of history, however, is something quite different. And that’s why it is so critical that the truth be documented, especially since Sessions is wont to lie, misrepresent, and distort when it comes to furthering his White Nationalist agenda. He might get away with it in the short run, but in the end he will be held fully accountable and his memory forever tied to the false, xenophobic, White Nationalist views that he spent a lifetime trying (fortunately, usually with little success outside of Alabama) to advance.Also, my long time friend and former colleague Judge Bobby Vinakoor neglected to mention that for him to go to Otey Mesa, his previously set dockets at the Chicago Immigration Court were reset, something that the practitioners representing the respondents were less sanguine about than Bobby. I will say though, that knowing Bobby, if they had good reasons for being heard before his retirement date, he probably squeezed them in somewhere and took care of them. Bobby was never one to intentionally leave someone hanging.OK, Leon Fresco, on to you! I hope to hell that you and your fat-cat law firm Holland & Knight (which I’ll be the first to admit has been a consistent stalwart on the pro bono immigration scene going back to my days at the Legacy INS) have permanent offices somewhere down on the Southern border where you are providing free legal assistance to all the noncriminals being needlessly detained by the Administration in substandard (many would say subhuman) condititions. Your “wise-ass comments” about running folks through the courts in 90 days or less to prevent them from being properly released under court orders deserve censure.As a former head of OIL, you know better than anyone that refugees from the Northern Triangle have zip chances of winning their cases without good lawyers, adequate time to prepare, and the ability to corroborate their (often quite plausible) claims with documentation. None of that is readily available in the obscure locations where the Trump/Sessions crowd has purposely chosen  to detain immigrants. So, racing them though “court,” as your apparently advocate, in detention where there can’t get lawyers, can’t prepare, and can’t get evidence, and where they are regularly coerced by your former clients at DHS into abandoning claims, is pretty much a “death sentence” for any valid claim they might have for protection.

I also find your continuing advocacy of the misuse of the Immigration Courts to deny due process and send “enforcement messages” even more highly objectionable. As a former Immigration Judge at two levels, I can assure you that’s not what courts are for! It’s a grotesque abuse of the court system and makes a mockery of due process — exactly the things that EOIR was supposedly created to eliminate (but hasn’t been able to, thanks to “enablers” like you, Leon). You wouldn’t be so chipper if you or one of your fat cat clients were treated the way our system treats vulnerable migrants looking for justice. But, you have helped me illustrate why the U.S. Immigration Courts can’t function in a fair and impartial manner and provide due process while part of the highly politicized DOJ under Administrations of either party.  So, for that I have to thank you.

And, I’ve always maintained that the Obama Administration richly deserves a huge part of the blame for the Due Process disaster in the U.S. Immigration Courts. They took a troubled system and turned it into a disaster. Undoubtedly, your unwillingness to “just say no” to some of the unconscionable legal positions the DOJ took and their abandonment of the responsibility to create a balanced, fair, impartial, and diverse immigration judiciary played some role in that man-made disaster.

And don’t kid yourself, Leon. What you defended in the Obama Administration wasn’t “quick justice!” No, it was “little or no justice” for the majority of detainees who were railroaded through the system in detention, something that should keep you awake when you’re not out making the “big bucks practicing big law.”  

For those of you who don’t know him, Leon once made a career out of going around claiming that barely literate women and children didn’t need lawyers in Immigration Court because is would “open the floodgates.”

From NPR:

“Yet last week, Deputy Assistant Attorney General Leon Fresco appeared before a federal judge in Seattle to argue that providing legal representation for immigrant children facing deportation could create open borders and send the message that no one here illegally would be removed.

“It would create a magnet effect,” Fresco said in court.”

http://www.pbs.org/newshour/rundown/holder-says-immigrant-children-get-lawyers-department-disagrees/

Funny thing about due process and justice, Leon, sometimes they are inconvenient.

You’re not a shill for the Obama Administration any more, Leon. You’re no longer required to “defend the indefensible” (something that’s not unfamiliar to me from my INS career). Reflect on the errors of your past, leave the dark behind, and come on over to the light. The living’s better over here, and there’s plenty of room for all.  

Best wishes,

Paul

09-27

NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW — A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATON COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM — By Paul Wickham Schmidt, United States Immigration Judge (Retired)

  • NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW
  • A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATION COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM
  •  
  • By Paul Wickham Schmidt
  • United States Immigration Judge (Retired
  • Let’s look at a few pieces of the EOIR “response” to the I-Team’s Recent Expose. You can read that full exercise in bureaucratese in a separate blog right here:  http://wp.me/p8eeJm-1tn

First, the EOIR bureaucracy has no coherent plan to address the backlog that now has risen to more than 628,000 pending cases (even more than at the time Jodie interviewed me) notwithstanding more U.S. Immigration Judges on board! The agency is “studying” the matter. Usually that means that politicos at the DOJ are looking for ways to further truncate Due Process and fairness for respondents in the Immigration Courts.

 

“Studying” the matter. Oh, please! Let’s look at the most glaring failure highlighted by Jodie, the failure to have even a rudimentary e-filing system. Back in 2001, a group of us, including computer wonks, field personnel, and Senior Executives were assigned to an e-filing project. We submitted a detailed report, complete with plans for a pilot program to the EOIR Executive Group, where it promptly was buried. More than 15 year later, and following several more waste of time studies, there still is no e-filing system in the U.S. Immigration Courts! Not even a viable pilot program! In the meantime, almost every other court system in America has implemented e-filing. For heaven’s sake, even the local courts in Wisconsin have e-filing capability!

 

Second, EOIR makes the totally disingenuous statement that: “Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. To this end, EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance.”

 

This is a blatant misrepresentation of what caused the real problem and a grotesque failure to accept responsibility! The current crisis has little, if anything, to do with Immigration Judge productivity (at an average of 750 completions per judge, U.S. Immigration Judges are already working 50% above the recommended maximum level for their positions — if anything, as shown by some of the recent gross errors exposed by U.S. Circuit Courts, both the Immigration Judges and the BIA Judges should be slowing down to get things right — “haste makes waste”).

 

No the real problem here is quite simple: bureaucrats at EOIR, the politicos at DOJ, and Congress. Let’s start with Congress. While Congress has belatedly provided some extra positions and funding for the Immigration Courts, for years Congress has been responsible for overfunding DHS enforcement while underfunding the Immigration Court system.

 

Moreover, the idiotic Government shutdown during the Obama Administration hurt immeasurably. During at least one such shutdown, the vast majority of Immigration Judges, those assigned to the non-detained dockets, were determined by the DOJ to be “nonessential,” sent home on “furlough,” and our dockets were cancelled. When we finally returned to court, there was docket chaos. The system really never has recovered from that man-made disaster. Moreover, both Congress’s failure to fund and DOJ’s idiotic designation of us as “nonessential” sent strong messages that the entire Immigration Court is a “who cares” operation from both a Congressional and an Administration standpoint. And mindless hiring freezes resulting from incompetence in Congress and the Executive Branch didn’t help either.

 

Then, years of “Aimless Docket Reshuffling” at the behest of DOJ politicos carrying out improper enforcement initiatives through the courts turned chaos into absolute bedlam! Senior Immigration Judges were reassigned from “Merits Dockets” to “meet and greets” for Unaccompanied Minors who really belonged before the DHS Asylum Office. Other judges were taken off of “ready for trial” merits dockets and assigned to hear cases of recently arrived “Adults With Children,” many of whom had not received sufficient time to find lawyers and whose cases were often “Not Quite Ready For Prime Time.” Judges were detailed from full “home” dockets to the Southern Border where they often weren’t needed or didn’t have enough work to keep busy. Then, the Trump Administration took judges off of Merits Dockets that had been pending for years and reassigned them to obscure detention courts, where they often were not fully occupied or were taking over dockets from other judges who were left with nothing to do.

 

The DOJ/EOIR bureaucracy long ago deprived sitting Immigration Judges of any meaningful control over their local dockets. To now insinuate that Immigration Judge “productivity” or “continuances granted by local Immigration Judges” are significant causes of the problem is an outrageous attempt to cover up the sad truth. Additionally, over the past four Administrations, the DOJ has refused to implement Congress’s statutory grant of contempt authority to U.S. Immigration Judges. This deprives Immigration Judges of even the most rudimentary tools possessed by judges of comparable authority for maintaining order and control of their courts.

 

Then there are continuances. As Hon. Jeffrey Chase and I have both pointed out in our separate blogs, the attempt to blame judges and overwhelmed private counsel, particularly those serving for NGSs or pro bono, for requesting too many continuances is totally bogus. The majority of the lengthy continuances in Immigration Court are the result of Aimless Docket Reshuffling imposed by the politicos at DOJ and carried out by compliant administrators at EOIR who have lost sight of their due process mission but not of the need to save their jobs by cooperating with the politicos.

 

As Jodie pointed out, there are lots of folks out there, many with potentially winning cases, who are ready and would like their “day in court.” But, the system is too busy shuffling things around to satisfy the President’s Executive Orders and trying to fulfill the Attorney General’s enforcement priorities to deliver justice in a reasonable, predictable, and orderly manner.

 

The private bar and NGO attorneys, many of whom serve pro bono or low bono, are the unsung heroes of this system. They are the only reason the system hasn’t completely collapsed yet! Their intentional mistreatment and the disrespect showered on them by spineless bureaucrats at EOIR and the cowardly politicos at DOJ is nothing short of a national disgrace!

 

Then, let’s take a closer look at the DOJ/EOIR hiring fiasco! According to a recent GAO study recommending improvements at the Immigration Courts, Immigration Judge hiring has taken an astounding average of two years! That’s longer than it takes for a Senate-confirmed political appointment or than it took the Roosevelt Administration to build the Pentagon during the New Deal! But, the results of this glacial, “Rube-Goldberg” process are disturbingly predictable and pedestrian. Nearly 90% of the Immigration Judges hired over this and the past Administration came from prosecutorial or other government backgrounds. With due respect, one could probably have produced similar results by “blind drawing” applications from senior government attorneys from a box. Neither EOIR nor DOJ has put forth an efficient, transparent, merit-based program to replace this mess, although many worthy models exist — such as the merit hiring procedures for U.S. Bankruptcy Judges and Magistrates which usually involve widespread input from leading practitioners in the areas they will be serving.

 

Notwithstanding the current “crisis,” EOIR and DOJ are sitting on an Immigration Judge vacancy rate of 15%! There are currently 55 judicial vacancies! EOIR was only able to hire and bring on 64 new Immigration Judges during the entire past year. That will barely be enough to fill the currently vacant positions and any retirements or other departures. So, the idea that a DOJ plan to budget for more judges is going to solve this crisis any time in the foreseeable future is nonsense.

 

 

Let’s take a quick look at the numbers in the DOJ “never-never land.” They project 449 Immigration Judges by the end of FY 2018, which is September 30, 2018, one year from now. Let’s also assume the highly unlikely: that Congress grants the request, the money is appropriated, additional courtrooms are built, additional staff is hired, all the judicial positions are filled, and the additional Immigration Judges are all on board and up to speed by September 30, 2018.

 

449 Immigration Judges could at most, complete approximately 337,000 cases without impeding due process. Therefore, using the DOJ’s own figures, and giving the most optimistic outlook possible, it would take nearly two years, practically to the end of this Administration, just to complete all of the cases currently on docket if no additional cases were filed! The idea that 449 Immigration Judges could do that plus handle incoming cases without creating a new backlog is facially absurd. DOJ’s own numbers refute it. What is clear is that neither the politicos at DOJ nor the bureaucrats at EOIR have any idea of how to actually solve the backlog problem and reestablish order in the Immigration Courts.

 

So, what really needs to be done!

 

First and foremost, we need an independent U.S. Immigration Court outside the DOJ. And that means a return to Due Process as the sole function and guiding light of the Immigration Court just like it is for all other independent courts. DHS Enforcement priorities should be considered and accommodated where possible without compromising due process. But, they are just one of many factors that go into running an efficient due process court system. DHS Enforcement should not be “driving the train.”

Given that approximately half of the individuals now in Immigration Court appear to be entitled to some form of relief, independent U.S. Immigration Judges could develop ways to force the DHS to identify these cases and either resolve them outside of court or move them up to “short dockets” for quick resolutions based largely on stipulations and focused testimony or legal arguments.

 

Moreover, I know from hard experience that even though independent Article III judges were technically not supposed to review “prosecutorial discretion“ they had many creative ways to basically tell the INS (now DHS) to get certain low priority or extreme humanitarian cases off the docket — or else. The current Administration’s abusive removal of prosecutorial discretion from local DHS prosecutors is a major contributing factor in the current docket mess. An independent court would be able to stand up to this kind of nonsense, rather than “going along to get along.” No court system in American operates without a heavy dose of PD from the prosecutors.

 

Additionally, implementation of contempt authority, extending to both private attorneys and Government prosecutors, would give Immigration Judges real clout in stopping abuses of the court’s docket and moving cases along in a failure and reasonable manner.

 

Second, the EOIR bureaucracy needs to be replaced with a real court structure patterned on other Federal Courts. I’d hazard to say that no other functioning court system in America has as Byzantine and as bloated a bureaucracy as EOIR. Far too many of the positions and resources are in “Headquarters” in Falls Church rather than in the local courts where they belong. Docket control needs to be returned to sitting Immigration Judges who are in the best position to work with the local bar, pro bono providers, the DHS Office of Chief Counsel, and the Court Administrator to establish the most efficient and fair ways of scheduling cases and moving along dockets given local conditions and limitations.

 

And “Job One” at the local Immigration Court level should be to work with all parties to insure that Immigration Court cases are docketed and scheduled in a manner that insures, to the maximum extent humanly possible, that no individual who wants a lawyer is required to appear without one. Representation by competent counsel is the single most important ingredient of achieving due process in the U.S. Immigration Courts.

 

Third, the U.S. Immigration Courts need a new professional Administrative Office patterned on the Administrative Office for U.S. Courts and responsible to a Judicial Council, not politicos at the DOJ. Courtroom planning, technology, security, files management, training, planning for the future, and hiring are all not up to professional court management standards in the current system. In particular, the outdated, often unreliable technology and inadequate space are glaring issues in a high volume system like the Immigration Courts.

 

Also, the current judicial selection system is a bad joke. It is neither transparent nor timely, and it totally lacks credibility in the “real world” of immigration practice. The Immigration Courts need a non-partisan, merit-based, efficient hiring system that gives local practitioners and judges as well as government counsel some meaningful input while producing results in a timely fashion. There are many merit-based models out there like those for hiring U.S. Bankruptcy Judges, U.S. Magistrates, and Judges for the Superior Court of DC.

 

Fourth, the system needs an Appellate Court that acts like an independent appellate court not a service center catering to the politicos at the DOJ. The current BIA’s lack of diverse backgrounds among its Appellate Immigration Judges and glaring lack of Immigration Court or asylum expertise has resulted in a weak body of asylum law and insufficient control over wayward judges who are unwilling to grant relief in appropriate situations. There are many asylum cases out there in the backlog that should and could be rapidly granted. Moreover, many of them probably should have been granted at the DHS Asylum Office. The current Board has failed to take appropriate corrective action in those courts where hostility to or misinterpretation of laws favorable to respondents has resulted in indefensibly low rates of granting relief. This, in turn, encourages the DHS to keep cases on the court docket that properly should be settled out of court, returned to the Asylum Office, or sent to the USCIS.

 

The current Board “is what it is,” It can’t really help itself, as a result of questionable choices outside of its control made by the politicos at the DOJ over several Administrations. I’m not suggesting that current BIA Judges should not be “grandfathered” into an independent Appellate Division of the Immigration Court. But future Appellate Judge appointments should be strictly merit-based and should be focused on recognizing proven expertise and fairness in applying asylum laws and expertise gained in activities beyond just government service, particularly those in clinical academic practices or serving the pro bono community through NGOs.

 

Fifth, and finally, the U.S. Immigration Courts need e-filing now! The time for “study” is long over! Existing systems in other courts can be tailored for U.S. Immigration Court use. It’s no longer “rocket science.” It’s “Basic Professional Court Management 101.” It’s time for action, not more studies, unfulfilled promises, and bureaucratic smokescreens! If nothing else, the failure of the DOJ over a number of Administrations to accomplish this very basic ministerial task demonstrates beyond any reasonable doubt its incompetence and inability to administer the U.S. Immigration Courts in anything approaching a minimally professional manner.

 

Yup, I’ve set forth an ambitious agenda. But, unlike the “DOJ/EOIR BS,” it’s based on real life experience and decades of observation at all levels inside and outside this broken system. If Congress and the Administration can’t get their collective acts together and establish an Independent Article Immigration Court now, there will be a “lock-up” point at which almost everything will stop functioning. There is no way that the current EOIR technology and inadequate planning can keep on absorbing even more cases and even more positions.

 

And if, as I predict, rather than doing the right thing, this Administration responds with mindless hurry up denials of due process, the cases will start piling up in the Article III Courts and being returned to the Immigration Courts for “do-overs” in droves. I’ve actually seen it happen before in the Bush Administration. But, this is much worse because there are many more cases and this Administration is even more clueless about how to deal with immigration enforcement and the Immigration Court system. In the end, it’s the folks who depend on the Immigration Court system for justice and the overall concept of our courts being able to deliver even-handed justice in a fair and reasonable manner that will be hurt. And, folks, that’s going to affect all of us at some point in the future.

 

Don’t accept more ridiculous shameful bureaucratic, “do nothing” BS from the DOJ! It’s time to hold DOJ and EOIR fully accountable for their failure to provide basic Due Process in the U.S. Immigration Courts and for Congress to accept their fair share of the blame!

 

Tell your Senators and Representatives that you’ve had enough of this nonsense and gross waste and mismanagement of government resources! Fixing the U.S. Immigration Courts now must be one of our highest national priorities! Those who would continue to sweep this problem under the rug deserve to be voted out of office! No more BS and excuses; Article I now! Due Process Now!

Other than the above, of course, I think the current system is great!

PWS

09-26-17

 

U.S. IMMIGRATION COURTS: Judge Lawrence O. “Burmanator” Burman (SOLELY In His NAIJ Officer Capacity) Gives Rare Peek Inside U.S. Immigration Courts’ Disaster Zone From A Sitting Trial Judge Who “Tells It Like It Is!”

Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017.  Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

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Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of  “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great  “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding  authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17

 

 

 

 

 

 

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus  on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

 

HON. JEFFREY CHASE ON WHY WE NEED AN ARTICLE I IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court

Jeffrey writes:

“On August 8, the Department of Justice issued a highly unusual press release that inadvertently illustrated the need for an independent Article I immigration court.  Titled “Return to Rule of Law Under Trump Administration Marked by Increase in Key Immigration Statistics,” the release proudly cited a 30 percent increase in the number of people ordered deported by immigration judges since the present administration took office (which of course corresponded with a marked decrease in the number of individuals granted relief and allowed to remain legally in the country).  The press release was posted on the public website of  the Executive Office for Immigration Review, the agency which includes both the immigration courts and the Board of Immigration Appeals.

On his blog immigrationcourtside.com, former BIA chairman Paul Schmidt drew some apt analogies, imagining what the reaction would be if the Supreme Court were to proudly announce that in support of Donald Trump’s deregulaton initiative, it had struck down 30 percent more regulations since he took office?  Or if a circuit court released a self-congratulatory statement that in support of the president’s war on drugs, it issued 30 percent more convictions and 40 percent longer sentences for drug crimes than under the previous administration?  Such statements would be unthinkable, and would trigger a strong backlash.  But not so for the August 8 announcement.  Fortunately, EOIR itself did not sink to issuing such a statement.  Unfortunately, EOIR felt the need to post the release in a prominent place on its website (either because it was instructed to do so, or was afraid not to).

The National Association of Immigration Judges (the immigration judges’ union) has for years made a strong argument for the creation of an independent Article I immigration court.  The 334 immigration judges are the only judges among the Department of Justice’s 112,000 total employees.  The concept of the judges’ independence and political neutrality never really took within DOJ.  When both the former INS and EOIR were housed within Justice (prior to the former being moved to the Department of Homeland Security after the reorganization that followed the 9/11 tragedy), INS higher-ups would make complaints about immigration judges known to the Deputy Attorney General’s office, which oversaw EOIR’s director, a process that would be highly improper in other courts.  When 1996 legislation provided immigration judges with contempt power over attorneys appearing in their courts, INS managed to indefinitely block implementing DOJ regulations because the agency did not wish to afford immigration judges such authority over their fellow DOJ attorneys within INS; as a result, the judges still lack such contempt power 21 years later.

. . . .

It is a cornerstone of our justice system that judges not only be impartial, but that they also avoid the appearance of impartiality.  28 U.S.C. § 455(a) requires federal judges to recuse themselves in any proceeding in which their impartiality might reasonably be questioned.  How can the impartiality of an immigration judge not be questioned when the agency that employs him or her releases statements celebrating the increase in the percentage of cases in which deportations are ordered as a “return to the rule of law?”

The partisan pronouncement raises questions not only as to the independence of the judges in their decision making.  It also casts a cloud over hiring and policy decisions by EOIR’s management.  In hiring new judges and Board members, will EOIR’s higher-ups feel pressured to choose candidates likely to have higher deportation rates?  Are they likely to implement policies aimed at increasing fairness or expediency?  As an example, let’s use what Paul Schmidt aptly refers to as “aimless docket reshuffling,” in which immigration judges are detailed away from their home courts to hear cases elsewhere.  Of course, this means that the individuals scheduled for hearing in the home court (who have likely been waiting two years for their hearing) need to have their cases adjourned due to the judge’s absence.  I have no information as to what factors go into making these detailing decisions.  But hypothetically, if EOIR’s managers feel pressure to produce more deportations, might they consider shifting judges in high-volume courts in large cities such as New York or Los Angeles, where the respondents are likely to be represented by counsel, have adequate time to prepare and gather evidence, and have access to call witnesses (including experts),  to instead hear cases of detained, recently-arrived respondents in remote areas where they have less access to counsel, community support, evidence, or witnesses?  In which of those two scenarios might the judge “accomplish” more deportations in the same amount of time?

There is some irony in the use of the term “rule of law” in the Aug. 8 press release, because rules of law take a great deal of time to develop properly.  In a 2013 article titled “Let Judges Be Judges,” , Hon. Dana Leigh Marks, the president of the National Association of Immigration Judges, stated that allowing “immigration judges to consider the individual circumstances unique to each case” in an independent Article I court setting “would create a fine-tuned tool…instead of the blunt instrument that now exists.”  A “fine-tuned tool” is needed, as many of the claims presently being heard involve very complex legal issues.  Many cases involve those fleeing an epic humanitarian crisis in Central America.  Case law continues to develop, as leading asylum attorneys and scholars have spent years crafting nuanced theories to clarify the nexus between the serious harm suffered or feared and one of the five protected grounds required for a grant of asylum.  In other claims from countries such as Albania or the former Soviet republics, highly detailed testimony from country condition experts is required to educate judges as to specific dangers not mentioned in the generalized State Department country reports.  This type of painstaking development of the record cannot be accomplished under conditions termed in a 2009 report of the Appleseed Foundation as “assembly line injustice.”

In summary, a Department of Justice which chooses to publicly celebrate accelerated hearings resulting in orders of deportation as a positive development cannot oversee an immigration court system which aspires to provide “due process and fair treatment for all parties involved.”

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Head over to Jeffrey’s great blog at the above link for the complete story.

Jeff Sessions seldom, if ever, has a kind word to say about migrants of any type. He has been the enthusiastic “point man” for the President’s xenophobic, White Nationalist immigration enforcement program. He has promoted and repeated false narratives about immigrants and crime. The idea of him running the U.S. Immigration Court system charged with proving fair hearings to migrants is preposterous on it’s face.

And, it’s not just Sessions. All Attorneys General have the actual or apparent conflict of interest described by Jeffrey Chase. Sessions is just one of the most outrageous examples to date. If an Immigration Judge made the type of statement set forth  in the DOJ press release, he or she would undoubtedly be charged with ethical violations. And, let’s not forget that under the bizarre structure of the U.S. Immigration Courts, the Attorney General has authority to “certify” any individual case to him or her self and substitute his decision for that of the Immigration Judge and the BIA.

PWS

08-16-17

 

JASON DZUBOW IN THE ASYLUMIST: TRUMP’S 101 YEAR PLAN FOR REMOVALS! — “Malevolence tempered by incompetence!”

http://www.asylumist.com/2017/07/27/president-trumps-101-year-deportation-plan/

Jason writes:

“Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.”

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Amen!

PWS

08-14-17