⚖️🗽NDPA: CAIR COALITION RIPS MAYOR BOWSER’S CALL FOR NATIONAL GUARD — Humanitarian Situations Require Sensible Government Support, Not Mindless Militarization!

Adina Appelbaum
Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
PHOTO: “30 Under 30” from Forbes

https://www.facebook.com/CAIRCoalitionDC

Capital Area Immigrants’ Rights Coalition – CAIR Coalition

July 29 at 8:00 PM

 

·

Shared with Public

Last week, Mayor Bowser made a request for National Guard troops to be deployed to DC to help with the thousands of migrants arriving on charter buses from Texas and Arizona.

CAIR Coalition condemns this militarized response and calls for our government leaders to support and listen to the local groups that have consistently done the work on the ground to support the immigrant community in DC. There are other alternatives like providing additional funding to community groups to help with temporary lodging and other basic needs.

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

Bowser’s semi-nonsensical “emergency request” seems to be nothing more than a “cheap publicity stunt” at the expense of vulnerable asylum applicants and those in the community who are assisting them! And, it worked! She got lots of “play” in the news media.

But, just how would the National Guard actually assist in this largely “manufactured” and unnecessary humanitarian “crisis?” 

Will they be transporting migrants from DC to their final destinations? Helping them find lawyers? Explaining their reporting obligations to DHS and EOIR? Finding them shelter in the area? Providing meals and caring for children? 

Gimmie a break! Misusing the National Guard like this would also make them less available for real crises where they could help — like the flooding disaster in Kentucky!

What’s needed, as pointed out by CAIR, is sensible supplemental funding for community organizations and others who have been helping migrants resettle and process their cases. Also, shame on the Biden Administration for not getting “ahead of the curve” to provide Federal Government support to counter this entirely predictable and wholly avoidable publicity stunt created by Texas’s White Nationalist, scofflaw Governor Greg Abbott and mindlessly advanced by Mayor Browser’s misguided request!

🇺🇸 Due Process Forever!

PWS

08-02-22

🇺🇸🗽⚖️👍🏾🤗 D.C. VALUES COALITION’S GREAT RESPONSE TO ABBOTT’S 🤮🏴‍☠️ LATEST RACIST STUNT: “DC welcomes all immigrants, including DACA recipients, TPS holders, refugees and asylum seekers from all nations to our area, offering them help and support.”

Adina Appelbaum
Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
PHOTO: “30 Under 30” from Forbes

https://www.caircoalition.org/news-clip/dc-values-coalition-statement-response-governor-abbotts-announcement

DC Values Coalition Statement in Response to Governor Abbott’s Announcement

Apr 08, 2022

On Wednesday, April 6, Governor Greg Abbott of Texas announced he will start busing immigrants to Washington, DC in response to the decision by the government to end Title 42. Title 42 is a cruel policy, which used the pandemic as an excuse to expel families and individuals from the United States under the guise of public health.

We as the DC Values Coalition condemn Governor Abbott’s announcement. We do not believe in using human beings to make political statements. Regardless of what happens next, DC welcomes all immigrants, including DACA recipients, TPS holders, refugees and asylum seekers from all nations to our area, offering them help and support.

Organizations in the DC Values Coalition will support these individuals with their needs and make sure that DC remains a place that is welcoming and safe for immigrants. We will also push to guarantee they are not detained and we will continue to advocate for ICE to exercise discretion in detention and deportation efforts.

The DC Values Coalition is a coalition of DC-based immigration legal and social service providers that seeks to defend immigrants’ rights.

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Many thanks to all concerned for this terrific response! I particularly appreciate the efforts of my friend Adina Appelbaum of CAIR Coalition, my former star student in Refugee Law & Policy at Georgetown Law, a former Arlington Immigration Court Legal Intern, and a “charter member” of the NDPA.

🇺🇸Due Process Forever!

PWS

04-08-22

 

🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Kangaroos
“Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.ca4.uscourts.gov/opinions/191978.P.pdf

Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published

PANEL:  GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges

OPINION BY: Judge Barbara Milano Keenan

KEY QUOTE: 

Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.

Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.

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After eight years of bouncing around the system at various levels THIS “Not Quite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!

Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!

This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.

Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court! 

I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in th NDPA are ready to go in and start cleaning  up and improving EOIR right now! Judge Garland take note!

Adina Appelbaum
Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
PHOTO: “30 Under 30” from Forbes

Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.

Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?

Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation. 

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.

To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)! 

Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

PWS

03–05-21

🛡⚔️ROUND TABLE AMICUS BRIEF CITED, QUOTED IN RECENT COURTHOUSE NEWS ARTICLE ABOUT 4TH CIRCUIT ORAL ARGUMENT ON PROCEDURAL PROTECTIONS FOR UNREPRESENTED ASYLUM APPLICANTS!

Knightess
Knightess of the Round Table
Brad Kutner
Brad Kutner
Courthouse News Richmond Reporter
Photo Source: MuckRack

https://www.courthousenews.com/panel-grapples-with-role-of-judges-in-pro-se-asylum-cases/?amp=1

Brad Kutner reports for Courthouse News:

. . . .

Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.

In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”

Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.”

. . . .

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Read Brad’s full article at the link.

Many thanks to my  “eagle eyed” friend Deb Sanders for sending this my way.

The Round Table 🛡⚔️ continues to play a positive role. Compare that with the unfailingly negative role of the current “EOIR Clown Show.”🤡🤮

In what hopefully will be a much better world after January 20, 2021, the Round Table could work with a “new EOIR,” led and staffed by real judges from the NDPA, on the practical legal and administrative reforms necessary for EOIR to become a “model court,” using  teamwork and best practices to guarantee fairness and due process for all. That’s actually what the “EOIR vision” was prior to the advent of the Bush II Administration in 2001.  

That noble vision could still become a reality, but only if the Biden-Harris Administration evicts the “EOIR Clown Show” 🤡and replaces it with competent experts from the NDPA committed to due process for all. ⚖️🧑🏽‍⚖️🇺🇸🗽

Due Process Forever!

PWS

12-11-20

 

THE GIBSON REPORT – 01-14-19 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project

THE GIBSON REPORT – 01-14-19 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project

 

TOP UPDATES

 

New York City mayor vows health care for all — including undocumented immigrants

WaPo: New York City Mayor Bill de Blasio (D) on Tuesday issued a bold guarantee of affordable health care for every resident, thrusting the nation’s largest city to the forefront of debates over universal health coverage and immigrant rights. The promise is aimed at 600,000 New Yorkers who lack insurance because they can’t afford it, believe they don’t need it, or can’t get it because they are in the country illegally.

 

‘Never been more depressed’: Trump kills Graham effort to end shutdown

Politico: President Donald Trump has rejected a plan proposed by a bloc of Senate Republicans who had hoped to break an impasse over the government shutdown, leaving Congress and the White House with little obvious way out of the extended battle over Trump’s border wall.

 

Head Of Controversial Tent City Says The Trump Administration Pressured Him To Detain More Young Migrants

VICE: Kevin Dinnin, the CEO of the contractor that ran the controversial tent city for migrant children in Tornillo, Texas, says the facility is closing down because he refused the government’s request to detain more youths there. See also Trump administration removes all migrant teens from giant Tornillo tent camp

 

A Waiting Game For Immigrants And Border Agents On 2 Sides Of The Border Wall

NPR: Their numbers have dropped dramatically from around 6,000 to fewer than 2,000 today. They’re staying in makeshift shelters throughout the city, waiting week after week to hear their own number called out in an announcement that is made every morning in a small park near the U.S. port of entry. See also Migrants’ Despair Is Growing at U.S. Border. So Are Smugglers’ Profits.

 

The Judicial Black Sites the Government Created to Speed Up Deportations

AIC: In certain areas there is simply no way of knowing how many detained individuals—including children—have been deported without the opportunity to obtain counsel, and without appropriate safeguards preventing their removal to imminent harm.

 

As Government Pulls Back, Charities Step In to Help Released Migrants

NYT: But as the number of migrant families in recent months has overwhelmed the government’s detention facilities, the Trump administration has drastically reduced its efforts to ensure the migrants’ safety after they are released. People working along the border say an ever larger number of families are being released with nowhere to stay, no money, no food and no means of getting to friends and relatives who may be hundreds or thousands of miles away.

 

Trump floats path to citizenship for specialized visa holders

Politico: President Donald Trump seemingly teased plans for broader immigration reform on Friday, tweeting that he is open to a new path to citizenship for holders of a visa for high-skilled workers known as H-1B.

 

LITIGATION/CASELAW/RULES/MEMOS

Matter of A-B- Guidance from Grace v. Whitaker

The instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.

 

FOIA Lawsuit Seeks Names of CBP Officers Who Allegedly Abused Children

AIC: Disturbing information has been revealed about extensive allegations of sexual, physical, and verbal abuse of children in CBP custody. Now, the ACLU wants the names of officials alleged to have abused migrant children.

 

Federal Judge Argues That Illegal Reentry Prosecutions Not a Good Use of Judicial Resources

ImmProf: A federal judge has spoken out against a sharp increase in Northern Virginia in the prosecution of illegal immigrants for reentering the country after deportation.

 

A trial on whether Trump has the right to end TPS for Haiti ends. Now comes the wait

Miami Herald: A federal trial in New York challenging the Trump administration’s decision to end Temporary Protected Status, or TPS, for thousands of Haitians, concluded Thursday with internal government emails showing that the administration was so determined to end the program that it ignored its own government’s research flagging health and safety concerns.

 

CA1 Upholds IJ/BIA Denial of Asylum Due to Lack of Nexus to a Protected Ground

The court found petitioner secretly informed Ecuadorian police about gangs suffered persecution, but failed to prove he was targeted due to political opinion or particular social group since there was no evidence that his attackers knew he was an informant. (Mendez v. Whitaker, 12/11/18) AILA Doc. No. 19010870

 

CA1 Upholds BIA Reversal of IJ Grant of CAT Deferral to Domestic Violence Victim

The court denied petition for review and held the BIA correctly found the petitioner was unable to prove that the Dominican government acquiesced in her domestic abuse; thus, failed to meet the CAT definition of “torture” mandated for deferral of removal. (Ruiz-Guerrero v. Whitaker, 12/12/18) AILA Doc. No. 19010872

 

CA2 Vacates Unlawful Reentry Sentence Imposed on Noncitizen Based on Incorrect “Drug Trafficking Offense” Finding, and Remands for Resentencing

Using the categorical approach, the court held AZ’s drug law was overbroad; thus, district court erred in finding defendant’s prior conviction a “drug trafficking offense” that subjected him to 2016 Guidelines’ higher sentencing than that of 2014 Guidelines. (U.S. v. Guerrero, 12/10/18) AILA Doc. No. 19010831

 

CA2 Remands to BIA to Apply Correct Standard of Review on Good Faith Marriage Question

The court found BIA erred in applying clear error, instead of de novo, standard of review to IJ’s good faith marriage waiver denial; it also held petitioner abandoned abuse of discretion claim on MTR denial because he failed to adequately argue it in brief. (Alom v. Whitaker, 12/17/18) AILA Doc. No. 19010876

 

CA3 Holds PA Child Endangerment Statute Does Not Categorically Match INA §237(a)(2)(E)(i) Definition of Child Abuse

The court found BIA erred in finding 18 Pa. Cons. Stat. §4303(a)(1) is a categorical match for removability; rather, it does not have the requisite risk requirement to match INA’s “likelihood of harm” standard; remanded to consider alternative removal ground. (Liao v. Att’y Gen., 12/10/18) AILA Doc. No. 19010832

 

CA6 Finds Conviction for Rape by Digital Penetration Under Ohio Rape Statute Does Not Match Federal Definition

The court held BIA erred in conflating “rape” and “sexual abuse” definitions to conclude that generic rape crime included digital penetration; under Ohio law, digital penetration is not rape for purposes of aggravated felony-based removal. (Keeley v. Whitaker, 12/17/18) AILA Doc. No. 19010834

 

CA8 Denies Petition for Review, Finding No Due Process Violations by IJ

The court found although IJ stopped petitioner’s attorney from listing potential PSGs (potential denial of right to counsel), there was no prejudice because IJ considered three PSGs; and IJ was not biased by asking about her failure to report crimes to police. (Molina v. Whitaker, 12/12/18) AILA Doc. No. 19010833

 

CA11 Dismisses in Part Under §242, Upholds BIA’s Controlled Substance and Agg Fel Determinations That Were Not Appealed but Adjudicated Nonetheless

The court confirmed lack of jurisdiction to review BIA determination of removability ground; it also upheld not only BIA’s affirmance of IJ’s CIMT finding that was on appeal, but additional BIA controlled substance and agg fel findings not appealed by DHS. (Bula Lopez v. Att’y Gen., 11/21/18) AILA Doc. No. 19010873

 

CA11 Upholds BIA’s §237(a)(2)(B)(i) Removability Determination for Possession of Cocaine Based on Florida Drug Possession Statute’s Divisibility

The court denied petition for review, finding that based on state law precedent and jury instructions, the identity of a controlled substance is an element of Fla. Stat. §893.13(6)(a) and that BIA correctly found possession of cocaine a removable offense. (Guillen v. Att’y Gen., 12/13/18) AILA Doc. No. 19010874

 

CBP Releases Data on Increase in Medical Emergencies on the Southern Border

CBP released data regarding medical care referrals being made for arriving migrants by CBP to medical providers along the southwest border. On average, Border Patrol referred approximately 50 cases a day to medical providers. December 26, 2018, Border Patrol referred 82 cases to a medical provider. AILA Doc. No. 19010802

 

USCIS Notice that Lapse in Federal Funding Does Not Impact Most USCIS Operations

ICYMI: USCIS announced that a lapse in annual appropriated funding does not affect USCIS’s fee-funded activities. USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications, except as noted. AILA Doc. No. 18122408

 

Practice Alert: What Happens If the Government Shuts Down?

Drawing on information from government announcement and past government shutdowns, AILA provides an overview as to how this shutdown may impact immigration-related agencies. We will update this practice alert as new information becomes available. AILA Doc. No. 17042640

 

Full Transcripts: Trump’s Speech on Immigration and the Democratic Response and The Democratic Response

NYT: President Trump delivered an address to the nation on Tuesday night from the Oval Office to make a broad-based public push for border wall funding. After his speech, Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the Democratic leaders, delivered a response from Capitol Hill.

 

NEWARK ASYLUM OFFICE AFFIRMATIVE ASYLUM PUBLIC SCHEDULING UPDATE – January 2019 –

The Asylum Division gives priority to the most recently filed affirmative asylum applications when scheduling asylum interviews.  Generally cases are scheduled three to four weeks in advance utilizing the following priorities:

First priority: Applications rescheduled at the applicant’s request or the needs of USCIS.

Second priority: Applications that have been pending 21 days or less.

Third priority: Applications pending over 21 days, starting with newer filings and working towards older filings.

** This month, in addition to first and second priority cases, we are interviewing applicants who filed on or around October 2018. 

 

RESOURCES

 

EVENTS

 

ImmProf

 

Sunday, January 13, 2019

Saturday, January 12, 2019

Friday, January 11, 2019

Thursday, January 10, 2019

Wednesday, January 9, 2019

Tuesday, January 8, 2019

Monday, January 7, 2019

 

 

AILA NEWS UPDATE

http://www.aila.org/advo-media/news/clips

 

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Thanks Elizabeth.  I was just “touting” Elizabeth and Adina Appelbaum of CAIR to some folks at Georgetown Law as examples of some of my many star “Refugee Law and Policy” students who have gone on to superstar careers in advancing social justice (an important focus at Georgetown Law). There are, of course, many others. And, the neat thing is that many of them have kept in contact. Indeed, right now our “Gang of 32” retired Immigration Judges is working with Adina and others on an amicus brief project that she brought to our attention.

PWS

01-16-19

 

 

U.S. IMMIGRATION JUDGE RODGER P. HARRIS REPORTEDLY STANDS TALL FOR DUE PROCESS AS NEW COURT SUIT ALLEGES THAT HIS COLLEAGUES ON THE IMMIGRATION BENCH IN CHARLOTTE, N.C. ARE SCOFFLAWS WHO FAIL TO HOLD LEGALLY REQUIRED BOND HEARINGS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/18/lawsuit-challenges-immigration-judges-who-refuse-to-hold-bond-hearings-palacios-v-sessions.aspx?Redirected=true

From LexisNexis Immigration Community online:

“Lawsuit Challenges Immigration Judges Who Refuse to Hold Bond Hearings: Palacios v. Sessions

AIC, Jan. 17, 2018

“The government cannot lock people up without giving them access to prompt bond hearings and an opportunity to show that they should be released for the months or years that it takes to adjudicate their removal cases. This lawsuit challenges the actions of immigration judges in Charlotte, North Carolina who have done just that: refused to conduct bond hearings for people who properly file bond motions with the Charlotte Immigration Court.  The case was filed as a class action in the U.S. District Court for the Western District of North Carolina by the American Immigration Council, the CAIR Coalition, and Cauley Forsythe Law Group.”

Complaint

Brief in Support of Motion for Class Certification”

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Go on over to LexisNexis Immigration Community at the link for the complete story.
Check out paragraph 6 of the Complaint which contrasts the conduct of Judge Harris, who holds bond hearing in accordance with the law and established procedures, and the alleged conduct of his judicial colleagues in Charlotte.
Not surprising to me! Judge Harris was my colleague for years at the U.S. Immigration Court in Arlington Virginia where he had a reputation for scrupulously following the law and providing full due process to all who came before him. Just like a U.S. Immigration Judge is supposed to do.
On the other hand, prior to Judge Harris’s arrival, the Charlotte Immigration Court had a reputation among the private bar, commentators, and the press as a place where due process was often given short shrift, particularly in asylum cases.
Of course, these are merely allegations at this time. We’ll see what happens as the case progresses in Federal District Court.
While Sessions, McHenry, and the “Falls Church Crew” are screwing around with imaginary “goals and timetables’ — untethered to reality in a system with a 660,000 backlog and no real plan for resolving it — these are the real due process problems that are festering in the U.S. Immigration Courts and denying individuals their legal right to due process on a regular basis. Where’s the concern from “on high” with a court system that’s failing in its mission to provide due process to individuals under our Constitution? Obviously, the problem starts with a “Scofflaw Attorney General” who cares more about expediting removals and a White Nationalist immigration enforcement agenda than he does about the Constitution, Due Process, and the integrity of the U.S. Immigration Court system.
We need an independent Article I U.S. Immigration Court now!
PWS
01-18-18

 

DUE PROCESS CRISIS IN THE U.S. IMMIGRATION COURTS: New Report Finds That Detained Migrants In The Arlington & Baltimore Courts Face Severe Access To Counsel Problems Which Can Be “Outcome Determinative!”

https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4_033117 (1).pdf

This report (see link) was prepared and issued by the Center For Popular Democracy. Here are some key findings:

  • Every year, nearly 4,000 people in Washington, D.C. metropolitan area courts, Arlington, Virginia, and Baltimore, Maryland, face deportation in civil immigration court without the assistance of a lawyer. Based on original data analysis of Department of Justice records obtained through a Freedom of Information Act request, seven out of ten detained individuals in immigration court removal proceedings in Arlington, VA and eight out of ten in Baltimore, MD did not have any legal representation.
    • ■  People without lawyers faced enormous odds in fighting their deportation cases. Among detained immigrants without lawyers, people in Arlington were only successful in their cases 11 percent of the time and unrepresented people in Baltimore only successful 7 percent of the time.
    • ■  Having a lawyer in Arlington more than doubled a person’s chances of being able to remain in the U.S. and quadrupled a person’s chance of obtaining relief in Baltimore.
  • ■  Between 2010 and 2015, Immigration and Customs Enforcement (ICE) detained nearly 15,000 people in local and county jails2 throughout the states of Maryland and Virginia. In both regions, people who did not have lawyers were more than twice as likely to remain detained during the entirety of their immigration case, even if they may have been eligible for release on bond.
  • **************************************

Read the entire report which has some case histories in addition to charts and graphs.

The findings are disturbing because the Arlington and Baltimore Immigration Courts generally are considered among the best in the nation in striving to provide due process. The judges in each court are committed to representation and often go out of their way to encourage and facilitate the appearance of counsel. The ICE Chief Counsel’s Offices also appreciate and support pro bono representation.

Additionally, as noted in the report, the DC-Baltimore metropolitan area has a number of great organizations dedicated to providing pro bono lawyers, as well as local practitioners, “big law” firms, and numerous outstanding law school clinics, all of which support the pro bono program.

Yet even under these generally favorable conditions, the overwhelming majority of individuals on the detained dockets in both courts appear pro se, without a lawyer. And, the results with a lawyer are very significantly better than for those forced to represent themselves.

I fear that the new program of expanded immigration detention being planned by DHS, with courts operating in obscure, out of the way locations along the Southern Border, will further impede already limited access to counsel and therefore further degrade due process in our U.S. Immigration Courts.

Frankly, I have not seen any mention of the importance of due process or facilitating access to counsel in any of the many Trump Administration pronouncements on immigration. It’s all about enforcement, detention, removals, and prosecutions. Fairness and due process, which should always be paramount concerns, appear to be ignored.

In the end, it likely will be up to the already overworked and stressed pro bono bar, human rights groups, and community-based NGOs to enforce immigrants’ rights to counsel and to full due process. And, ultimately, that’s probably going to require litigation and intervention by the Article III Courts.

Thanks to Adina Appelbaum, who worked on this report, for bringing it to my attention.

PWS

04/13/17

 

Spend A Few Minutes With Me Behind The Bench! — Read My “Detained Master Calendar” Vignette From The “Journal on Migration and Human Security!”

Part IV: The Immigration Judge

There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).

In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14

Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.

*****

Prelude15

Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

“Thanks, Madam Clerk. Let’s make it happen!”

Showtime.

Politeness, patience, kindness. Listen.

“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”

Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.

The Damned

“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”

“Bonnie Baker for the respondent, Mr. Caceres.”

“April Able for the DHS.”
“What are we here for Ms. Baker?”

“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”

“I assume he’s in detention for a reason, Ms. Baker. What is it?”

“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”

“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“Sentence?”
“18 months, with all but three months suspended, Your Honor.”

“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”

“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”

“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”

“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”

“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”

“The family wanted me to ask for bond, Your Honor.”

“You did, Ms. Baker. What’s the next step?”

“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”

“You’re sure that’s what Mr. Caceres wants to do?”

“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”

“Yes.”

“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”

“Yes, Your Honor. I can’t stand any more detention.”

“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”

“Yes, judge, I understand.”

“And, you’ve discussed this with your family, sir?”

“I just want to go — no more detention. Can I go tomorrow?”

“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”

“Your Honor, may his wife and children come up and see him for a moment?”

“Yes, of course, Ms. Baker. Please come on up folks.”

“Your Honor, the respondent’s wife would like to make a statement to the court.”

“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”

“Understood. Thanks, Your Honor.’

“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”

The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer

“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”

“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”

“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”

“All right, come back in three weeks with your filing, without fail.”

“Can I come back next week, Your Honor? My client has been in detention a long time.”

“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”

“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”

“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”

“Excuse me, Your Honor, but may I be heard?”

“Yes, you may, Ms. Able.”

“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”

“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”

“Yes, Your Honor. I’ll have it here at the master in three weeks.”

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

“How are you this afternoon, Mr. Garcia?”

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

“You’re going to look for a lawyer before we proceed with your case?”

“Do I need a lawyer, judge?”

“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”

“Oh, no, judge. I don’t want to go back.”

“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”

“Can I come back next week?”

“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”

“Okay, Your Honor.”

“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”

Postlude

Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.

14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.

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The full citation is:

Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving  human stories here:

80-263-2-PB

PWS

03/22/17