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.”
 ***********************************************************
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“

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

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

 

 

 

 

BREAKING: I-TEAM 4 UNCOVERS HARD EVIDENCE THAT TRUMP ADMINISTRATION POLICIES ARE MAKING IMMIGRATION COURT BACKLOGS WORSE! — “ADR” Rips Off Taxpayers While Denying Due Process! — See More Of Award-Winning Investigative Reporter Jodie Fleischer’s Interview With Me!

Here’s the video and graphs:

http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html

Here’s the story:

“By Jodie Fleischer and Rick Yarborough

Newly released records obtained by the News4 I-Team show the severe impact new immigration policies have in the Washington, D.C., metropolitan area; one former judge says it’s making the huge immigration court case backlog even worse.
Records from January through July of 2017 show immigration judges around the country were forced to postpone 24,806 cases, because those judges were not in their courtrooms to hear cases.
In the Virginia and Maryland court locations, which serve the D.C. area, more than 2,700 local cases have been pushed off, sometimes for years, because the judges were instead reassigned to hear cases at the border.
“What it isn’t serving, I think, is due process and the ends of justice,” said Judge Paul Wickham Schmidt, who retired from the immigration court in Arlington in 2016, “I think it’s a misuse of resources.”

 

Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUmx6bGk
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook

Schmidt said he’s glad he left the bench, because it allows him to speak freely about what he’s seeing in the court system today.
“It’s a disaster. I think it’s moving toward implosion,” he added, directing his barbs at current immigration policies and the shift in which types of cases are now a priority.
“They’re trying to detain everybody who arrives, so they’ve assigned more judges to the southern border,” said Schmidt. “And those judges leave behind full dockets.”
DC-Area Immigration Courts Scheduling Hearings for 2021
The News4 I-Team learned in the first seven months of this year, the Department of Justice reassigned judges from around the country more than 200 times, usually for two weeks or more. Additional reassignments are ongoing and more are scheduled later this year.
In Arlington, Virginia records show at least 15 reassignments, and while the judges were gone, they had to postpone 2,580 local cases. Only Los Angeles, New York and Miami had more.
“But since most judges are backed up for years, they don’t have any vacant (slots). It’s not like they move them to next week. They move them to slots 3 to 4 years down the road,” said Schmidt. “Why would you use people in an office like Arlington that’s overwhelmed?”

 

Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUnE6DPv
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook

The Arlington court is already scheduling cases for December 2021. That’s the second longest delay in the nation.
In May alone, five of the seven Arlington judges had weeks of reassignment to the border. Records show they delayed 946 cases as a result.
“When you can’t give people hearing dates that are reasonable dates, which they can count on, they know it’s actually going to take place, then as a judge I feel you lose credibility,” said Schmidt.
Immigration: Crisis in the Courts
Schmidt said to make matters worse, while judges are reassigned, they cannot work remotely on cases back at their home courts because the files are all on paper, not electronic.
He said at the border, many cases involve people who recently arrived in the United States and haven’t had time to get a lawyer, so a lot of those cases are not even ready to be heard and get delayed as well.
Published 2 hours ago | Updated 50 minutes ago

 

Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUncKBbO
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook

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

What kind of “court system” puts “Gonzo Enforcement” first and Due Process last? A “captive” one run by incompetentent politicos!

I hope that when Sessions finally shows up for his long-awaited hearing before the Senate Judiciary Committee, Senator Leahy will grill him on his biased and incompetent administration of the U.S. Immigration  Courts as well as the false narratives and  misrepresentations Sessions spreads about Dreamers and migrants generally.

PWS

10-03-17

 

 

THE GRIFTERS: Party Of Liars — GOP Tax Plan Proposes To Loot America For the Rich, Limit Government Services For Everyone Else, & Leave Future Generations To Pay The Price — Not Surprisingly, They Lie About It And Assume That Non-Fat-Cat Supporters Are Too Dumb Or Biased to Figure It Out! — Fact Checker Gives GOP Politicos Coveted “Four Pinocchios!”

https://www.washingtonpost.com/news/fact-checker/wp/2017/09/29/trump-aides-sell-tax-plan-with-pinocchio-laden-claims/

Glenn Kessler writes for the “Fact Checker” in the Washington Post.

The wealthy are not getting a tax cut under our plan.”
— Gary Cohn, director of the White House Economic Council, in an interview on ABC’s “Good Morning America,” Sept. 28, 2017

“The numbers are about a trillion and a half to the baseline. But more importantly, it’s a trillion dollars to policy, which is the right way of looking at it. We think there will be $2 trillion of growth. So we think this tax plan will cut down the deficits by a trillion dollars.”
— Treasury Secretary Steve Mnuchin, in an interview on Fox News, Sept. 28

In selling President Trump’s tax plan, his aides have resorted to making strikingly misleading statements to defend it.

At the moment, there are few details about the tax plan, only broad strokes. That makes it easier for the administration to make big claims as analysts scramble to try to make sense of the plan’s possible impact. That will be much harder once an actual tax bill is written and the details can be analyzed in depth.

In the meantime, we have a pair of Four-Pinocchio claims that are worth highlighting.

 

‘The wealthy are not getting a tax cut under our plan’

The Trump tax plan drops the top bracket from 39.6 to 35 percent, and allows for the possibility of a 25 percent top rate through a pass-through entity. It presumably would also eliminate a 3.8 percent Obamacare tax on investment income that hits only upper-income taxpayers.

So, on its face, this is a ridiculous statement to make for any plan that includes reductions in tax rates. That’s because federal income taxes are paid mostly by the wealthy. So when you cut income tax rates, it results in lots of dollars for the wealthiest taxpayers.

According to Treasury Department data, the top 10 percent of income earners in 2016 paid 80 percent of individual income taxes. The top 20 percent paid 94.8 percent. The top 0.1 percent paid an astonishing 24.5 percent of taxes.

In 2014, the latest year Internal Revenue Service data is available, just the top 400 taxpayers — with $127 billion of income — paid $29.4 billion in income taxes, or more than 2 percent of all income taxes. That’s more than the bottom 70 percent of taxpayers combined.

 

In other words, the vast majority of American taxpayers pay little or nothing in income taxes; they instead mostly pay payroll taxes such as Social Security and Medicare. So it really strains credulity for administration officials such as Cohn to say the wealthy will not get a tax cut.

The wealthy pay most of the taxes, so unless the tax plan specifically leaves them untouched — which Trump’s plan does not — they will get big tax cuts. This is why distributional tables often look so lopsided when tax rates are reduced. The administration has suggested that another, higher rate level might be added, presumably so the distributional tables won’t look so ugly, but right now the plan calls for a significant reduction in the top rate.

Besides a reduction in the top tax rate, the tax plan would eliminate the alternative minimum tax (AMT). That in theory should be a boon for the wealthy as well, although it increasingly has snared families in the upper middle class, especially if they live in high-tax states or have many children.

 

The administration has called for eliminating the itemized deduction for state and local taxes, as well as the personal/dependent exemptions, which are key add-ons when calculating the AMT. (If those items were eliminated from the AMT, the number of tax filers facing the AMT would drop by 95 percent, according to the Joint Committee of Taxation.)

So it’s possible that for many people it would be a wash, or even a net loser, depending on whether a tax filer lives in a state with high taxes. According to JCT, the AMT is paid by 36 percent of returns with income of between $200,000 and $500,000, nearly 55 percent between $500,000 and $1 million, and nearly 18 percent above $1 million.

Still, in 2014, the top 400 taxpayers paid nearly $700 million because of the alternative minimum tax, nearly 2.5 percent of the total. The one recent tax return of President Trump that has leaked — for 2005 — shows his tax bill increased $31 million because of the AMT.

Finally, the tax plan calls for eliminating the estate tax, although it is unclear on whether any tax would be required when someone dies. Currently, the estate tax is estimated to affect only about 5,500 estates out of nearly 3 million estates because as much as $11 million can be shielded from taxation.

 

In theory, assets would be subject to capital gains tax instead, which could actually affect more people, but that has not been specified in the administration’s tax outline. If the administration also eliminates the gift tax and does not tax capital gains at death, some income earned by the wealthy may never be taxed.

“We strongly believe the final tax bill will not cut taxes for the wealthy as a class — but there is no way to solve for every single individual in the country,” a White House official said.

‘We think this tax plan will cut down the deficits by a trillion dollars’

Mnuchin made this statement in response to an observation that the nonpartisan Committee for a Responsible Federal Budget has estimated the tax plan would reduce revenue by $2.2 trillion over 10 years. (Including additional interest on the debt, CRFB estimated the deficit would increase by $2.7 trillion.) He argued that instead there would be an additional $2 trillion in revenue from economic growth, resulting in a $1 trillion reduction in the deficit.

Cohn, briefing reporters at the White House a few hours later, offered a different estimate: “We know that 1 percent change in GDP will add $3 trillion back. So if they’re right, we’re only going to pay down $800 billion of the deficit. I’ll live with a $800 billion paydown.”

It’s a little odd that Mnuchin is anticipating $2 trillion in revenue and Cohn is anticipating $3 trillion in revenue. But these are both very rosy estimates of the impact of a tax cut in economic growth. No serious economist believes that a tax cut boosts economic growth so much that the tax cut pays for itself.

The Congressional Budget Office, under Douglas Holtz-Eakin, a Republican, in 2005 estimated that a 10 percent reduction in federal income tax rates would have macroeconomic feedbacks of between 15 and 30 percent. In other words, a $1 trillion tax cut might yield $150 billion to $300 billion in additional revenue. That still means a reduction in revenue of as much as $700 billion.

“The big problem is that there is no fully specified plan,” Holtz-Eakin said. “Without one, you can’t gauge the growth or know the budget cost. I’m broadly sympathetic to the framework, but it is a start, not the finish.”

As Holtz-Eakin put it earlier this year in an opinion column for The Washington Post: “Proposing trillions of dollars in tax cuts and then casually asserting that such a plan would ‘pay for itself with growth’ … is detached from empirical reality.”

Indeed, contrary to popular perception, even Ronald Reagan predicted revenue would fall as a result of his big 1981 tax cut that reduced tax rates. That is shown in Reagan administration and Congressional Budget Office scores of the Reagan tax plan reproduced in a 2011 article for Tax Notes by Bruce Bartlett, who helped craft the 1981 tax cut as a congressional aide at the time. The estimates turned out to be wrong because the 1981-1982 recession was deeper than expected and inflation fell more rapidly than expected, so Reagan boosted taxes just one year after his tax cut.

William A. Niskanen, chairman of Reagan’s Council of Economic Advisors, co-wrote a paper in 1996 that defended Reagan’s economic record but also said it was “an enduring myth” that Reagan officials believed tax cuts would pay for themselves. “This was nonsense from day one, because the credible evidence overwhelmingly indicates that revenue feedbacks from tax cuts is 35 cents per dollar, at most,” Niskanen wrote, noting that “the Reagan administration never assumed that the tax cuts would pay for themselves.”

A Treasury Department study on the impact of tax bills since 1940, first released in 2006 and later updated, found that the 1981 tax cut reduced revenue by $208 billion in its first four years. George W. Bush’s 2001 tax cut — also a rate cut — led to a revenue loss of $91 billion, over four years, the Treasury paper calculated. (The figures are rendered in constant 2012 dollars.)

Both the Reagan and Bush tax cuts came during periods of economic stress, which is certainly not the case now. So there is less room now for a big swing upward in the economy, especially with the country’s aging workforce.

The Treasury Department did not respond to a query for an explanation of Mnuchin’s math. But frankly it is irresponsible for a treasury secretary to claim a certain amount of growth or revenue without even producing the details of a plan, as the details determine the impact on the economy.

The Pinocchio Test

Though the details of the tax plan are sparse, both Cohn and Mnuchin made statements that are simply false. Of course the wealthy will do well under the tax cut, even if certain deductions are eliminated, and it’s silly to pretend otherwise. And it’s a fantasy to claim that the tax cut will pay for itself — and even reduce the deficit — especially in an economy that already has low unemployment and a booming stock market.

Four 🤥

The wealthy are not getting a tax cut under our plan.”
— Gary Cohn, director of the White House Economic Council, in an interview on ABC’s “Good Morning America,” Sept. 28, 2017

“The numbers are about a trillion and a half to the baseline. But more importantly, it’s a trillion dollars to policy, which is the right way of looking at it. We think there will be $2 trillion of growth. So we think this tax plan will cut down the deficits by a trillion dollars.”
— Treasury Secretary Steve Mnuchin, in an interview on Fox News, Sept. 28

In selling President Trump’s tax plan, his aides have resorted to making strikingly misleading statements to defend it.

At the moment, there are few details about the tax plan, only broad strokes. That makes it easier for the administration to make big claims as analysts scramble to try to make sense of the plan’s possible impact. That will be much harder once an actual tax bill is written and the details can be analyzed in depth.

In the meantime, we have a pair of Four-Pinocchio claims that are worth highlighting.

 

‘The wealthy are not getting a tax cut under our plan’

The Trump tax plan drops the top bracket from 39.6 to 35 percent, and allows for the possibility of a 25 percent top rate through a pass-through entity. It presumably would also eliminate a 3.8 percent Obamacare tax on investment income that hits only upper-income taxpayers.

So, on its face, this is a ridiculous statement to make for any plan that includes reductions in tax rates. That’s because federal income taxes are paid mostly by the wealthy. So when you cut income tax rates, it results in lots of dollars for the wealthiest taxpayers.

According to Treasury Department data, the top 10 percent of income earners in 2016 paid 80 percent of individual income taxes. The top 20 percent paid 94.8 percent. The top 0.1 percent paid an astonishing 24.5 percent of taxes.

In 2014, the latest year Internal Revenue Service data is available, just the top 400 taxpayers — with $127 billion of income — paid $29.4 billion in income taxes, or more than 2 percent of all income taxes. That’s more than the bottom 70 percent of taxpayers combined.

 

In other words, the vast majority of American taxpayers pay little or nothing in income taxes; they instead mostly pay payroll taxes such as Social Security and Medicare. So it really strains credulity for administration officials such as Cohn to say the wealthy will not get a tax cut.

The wealthy pay most of the taxes, so unless the tax plan specifically leaves them untouched — which Trump’s plan does not — they will get big tax cuts. This is why distributional tables often look so lopsided when tax rates are reduced. The administration has suggested that another, higher rate level might be added, presumably so the distributional tables won’t look so ugly, but right now the plan calls for a significant reduction in the top rate.

Besides a reduction in the top tax rate, the tax plan would eliminate the alternative minimum tax (AMT). That in theory should be a boon for the wealthy as well, although it increasingly has snared families in the upper middle class, especially if they live in high-tax states or have many children.

 

The administration has called for eliminating the itemized deduction for state and local taxes, as well as the personal/dependent exemptions, which are key add-ons when calculating the AMT. (If those items were eliminated from the AMT, the number of tax filers facing the AMT would drop by 95 percent, according to the Joint Committee of Taxation.)

So it’s possible that for many people it would be a wash, or even a net loser, depending on whether a tax filer lives in a state with high taxes. According to JCT, the AMT is paid by 36 percent of returns with income of between $200,000 and $500,000, nearly 55 percent between $500,000 and $1 million, and nearly 18 percent above $1 million.

Still, in 2014, the top 400 taxpayers paid nearly $700 million because of the alternative minimum tax, nearly 2.5 percent of the total. The one recent tax return of President Trump that has leaked — for 2005 — shows his tax bill increased $31 million because of the AMT.

Finally, the tax plan calls for eliminating the estate tax, although it is unclear on whether any tax would be required when someone dies. Currently, the estate tax is estimated to affect only about 5,500 estates out of nearly 3 million estates because as much as $11 million can be shielded from taxation.

 

In theory, assets would be subject to capital gains tax instead, which could actually affect more people, but that has not been specified in the administration’s tax outline. If the administration also eliminates the gift tax and does not tax capital gains at death, some income earned by the wealthy may never be taxed.

“We strongly believe the final tax bill will not cut taxes for the wealthy as a class — but there is no way to solve for every single individual in the country,” a White House official said.

‘We think this tax plan will cut down the deficits by a trillion dollars’

Mnuchin made this statement in response to an observation that the nonpartisan Committee for a Responsible Federal Budget has estimated the tax plan would reduce revenue by $2.2 trillion over 10 years. (Including additional interest on the debt, CRFB estimated the deficit would increase by $2.7 trillion.) He argued that instead there would be an additional $2 trillion in revenue from economic growth, resulting in a $1 trillion reduction in the deficit.

Cohn, briefing reporters at the White House a few hours later, offered a different estimate: “We know that 1 percent change in GDP will add $3 trillion back. So if they’re right, we’re only going to pay down $800 billion of the deficit. I’ll live with a $800 billion paydown.”

It’s a little odd that Mnuchin is anticipating $2 trillion in revenue and Cohn is anticipating $3 trillion in revenue. But these are both very rosy estimates of the impact of a tax cut in economic growth. No serious economist believes that a tax cut boosts economic growth so much that the tax cut pays for itself.

The Congressional Budget Office, under Douglas Holtz-Eakin, a Republican, in 2005 estimated that a 10 percent reduction in federal income tax rates would have macroeconomic feedbacks of between 15 and 30 percent. In other words, a $1 trillion tax cut might yield $150 billion to $300 billion in additional revenue. That still means a reduction in revenue of as much as $700 billion.

“The big problem is that there is no fully specified plan,” Holtz-Eakin said. “Without one, you can’t gauge the growth or know the budget cost. I’m broadly sympathetic to the framework, but it is a start, not the finish.”

As Holtz-Eakin put it earlier this year in an opinion column for The Washington Post: “Proposing trillions of dollars in tax cuts and then casually asserting that such a plan would ‘pay for itself with growth’ … is detached from empirical reality.”

Indeed, contrary to popular perception, even Ronald Reagan predicted revenue would fall as a result of his big 1981 tax cut that reduced tax rates. That is shown in Reagan administration and Congressional Budget Office scores of the Reagan tax plan reproduced in a 2011 article for Tax Notes by Bruce Bartlett, who helped craft the 1981 tax cut as a congressional aide at the time. The estimates turned out to be wrong because the 1981-1982 recession was deeper than expected and inflation fell more rapidly than expected, so Reagan boosted taxes just one year after his tax cut.

William A. Niskanen, chairman of Reagan’s Council of Economic Advisors, co-wrote a paper in 1996 that defended Reagan’s economic record but also said it was “an enduring myth” that Reagan officials believed tax cuts would pay for themselves. “This was nonsense from day one, because the credible evidence overwhelmingly indicates that revenue feedbacks from tax cuts is 35 cents per dollar, at most,” Niskanen wrote, noting that “the Reagan administration never assumed that the tax cuts would pay for themselves.”

A Treasury Department study on the impact of tax bills since 1940, first released in 2006 and later updated, found that the 1981 tax cut reduced revenue by $208 billion in its first four years. George W. Bush’s 2001 tax cut — also a rate cut — led to a revenue loss of $91 billion, over four years, the Treasury paper calculated. (The figures are rendered in constant 2012 dollars.)

Both the Reagan and Bush tax cuts came during periods of economic stress, which is certainly not the case now. So there is less room now for a big swing upward in the economy, especially with the country’s aging workforce.

The Treasury Department did not respond to a query for an explanation of Mnuchin’s math. But frankly it is irresponsible for a treasury secretary to claim a certain amount of growth or revenue without even producing the details of a plan, as the details determine the impact on the economy.

The Pinocchio Test

Though the details of the tax plan are sparse, both Cohn and Mnuchin made statements that are simply false. Of course the wealthy will do well under the tax cut, even if certain deductions are eliminated, and it’s silly to pretend otherwise. And it’s a fantasy to claim that the tax cut will pay for itself — and even reduce the deficit — especially in an economy that already has low unemployment and a booming stock market.

Four 🤥 🤥 🤥 🤥

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

Four Pinocchios is getting into “Jeff Sessions’s territory!”

But, I can see that they were richly deserved. I watched Steve “Munchkin” Mnuchkin on “Meet the Press” with Churck Todd this AM.  It was appalling!

Munchkin lied about Puerto Rico, lied about the tax plan, and then lied and tried to cover up his own responsibility for trying to get a “freebie” at taxpayer expense for his honeymoon. The idea that there was any “national security” reason for the Munchkin keeping in touch with the White House is preposterous.

Indeed the very idea that Munchkin would have any role in national security other than making sure the checks don’t bounce is prima facie ridiculous. And, if he did, that’s what secure facilities in the CIA part of the nearest U.S. Embassy are for. Or for that matter, that’s what subordinates in the Trasure Department are for. Gotta believe that every once and awhile spooks have to make secure communications with Washington.

When confronted by Todd with his obvious lies and cover-ups, Munchkin just kept on spewing whoppers. Finally, Todd gave up, thanked him, and let the record speak for itself.

PWS

10-01-17

 

 

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.
**************************************
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

 

READ THE DOJ/EOIR’S (HIGHLY BUREAUCRATIC) RESPONSE TO THE NEWS 4 I-TEAM — The DOJ/EOIR “Plan” Is “No Plan” Because They Are Clueless As To How To Solve The Self-Created Court Backlog Problem Without Stomping All Over Due Process!

jhttp://www.nbcwashington.com/news/local/US-Department-of-Justice-Executive-Office-for-Immigration-Review-Responses-to-I-Team-Immigration-Backlog-Report-446936203.html

“U.S. Department of Justice Executive Office for Immigration Review Responses to I-Team Immigration Backlog Report

 

What steps have been taken by DOJ/EOIR to combat the backlog?

EOIR is committed to a multi-level strategy to maximize our adjudicatory capacity, including the hiring of more judges, working with our federal partners to make the immigration process more efficient, and the increased use of video-teleconference capabilities. EOIR is undertaking a broad, agency-wide effort to review and reform its internal practices, procedures, and technology in order to enhance immigration judge productivity and ensure that cases are adjudicated in a fair and timely manner across all of the agency’s courts. EOIR records show that through the end of August 2017, the immigration courts had 628,698 pending cases. 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.

How many immigration judges have retired and how many have been sworn in the last two years?

The number of immigration judges who retired or separated during each of the following fiscal years (FY) is as follows: FY 2016, 13, and FY 2017 (through Sept. 15, 2017) 21. EOIR hired 56 immigration judges during FY 2016, and 64 immigration judges during FY 2017 (through Sept. 15, 2017).

How many open positions are there currently for immigration judges?

There are currently 329 immigration judges nationwide, out of EOIR’s current authorized level of 384.

Judge Marks discussed how she thinks the number of immigration judges should be doubled. Is there a goal by EOIR on how many new judges to hire?

As noted in EOIR’s FY 2018 budget request (available here: https://www.justice.gov/jmd/page/file/968566/download), the largest challenge facing the immigration courts is the growing pending caseload. The agency’s FY 2018 budget strategy is a sustained focus on increasing adjudicative capacity in order to meet EOIR’s mission to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the nation’s immigration laws.

To implement EOIR’s strategy, EOIR’s FY 2018 budget request includes a requested increase in immigration judge teams (each team consists of one immigration judge and five support staff) that would increase EOIR’s immigration judge corps to 449 and provide 225 additional full-time employees for mission support.”

Source: U.S. Department of Justice Executive Office for Immigration Review Responses to I-Team Immigration Backlog Report – NBC4 Washington http://www.nbcwashington.com/news/local/US-Department-of-Justice-Executive-Office-for-Immigration-Review-Responses-to-I-Team-Immigration-Backlog-Report-446936203.html#ixzz4toZyt2D9
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook

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No guys, I’m sorry! Much as I love you, and much as I realize that it was was a bunch of meddling politicos and out of touch bureaucrats, with lots of help from a willfully blind Congress, that created these problems over the past 15 years, it’s going to take more than politicos at the DOJ and bureaucrats in Falls Church to solve it.
Committing “to a multi-level strategy to maximize our adjudicatory capacity,” whatever that primo piece of bureaucratic gobbledygook might mean in plain English, isn’t going to cut it. Nor is just throwing more judges and more money at it going to do the trick.
And the answer certainly isn’t more truncation of due process and typical bureaucratic “haste makes waste bogus efficiencies and streamlining” which actually wastes massive amounts of time and money while not getting the job done. The courts are already in a due process crisis. “Speeding up the assembly line” or setting bogus production goals is not the answer. However, some “smart court administration” and “smart enforcement” are part of the solution. Sadly, it’s just not within the “skill set” of the group at DOJ and EOIR who are flailing away at court administration.
Nor, frankly, does it appear to be within the expertise of current DHS/ICE management without some Congressional oversight and accountability (things that have been remarkably absent in this Congress). Old saying:  Garbage In = Garbage Out, and right now ICE Enforcement, Detention, and Legal Counsel Programs are in “Garbage Truck Mode.” If Congress doesn’t step in, I think the Article III Courts eventually will, if only as an act of self-defense. Nor is evading the Immigration Court system with unconstitutional proposals for expanding “expedited removals” the answer. 
The DHS Enforcement System and the Immigration Courts are already squandering resources and wasting the taxpayers money at alarming rates. “Big-time reforms” must precede the injection of massive resources into a totally broken system. And that goes for putting some Congressional brakes on the “gonzo” enforcement now being carried out by DHS, and their mismanagement of the ICE Legal Program, which is a key part of the problem.
Next up: My Response:  I take on the DOJ/EOIR Bogus  “Strategy” and tell you what really needs to be done to restore due process to a broken court system.
PWS
09-26-17

SEE PT. II OF NBC4’S “CRISIS IN THE IMMIGRATION COURTS” FEATURING INTERVIEWS WITH ME — Understand Why This System Must Be Changed NOW!

Here’s a link to the video of Jodie Fleischer’s “Late Night Report on the Crisis in the Immigration Courts” from last night’s 11PM Version of News 4:

http://www.nbcwashington.com/news/local/Massive-Immigration-Case-Backlog-Takes-Years_Washington-DC-447835143.html

Here’s an updated story from the I-Team on the human costs of the backlog and the mindless policies of the Trump ‘administration that are making things even worse. Includes comments from superstar local practitioner Christina Wilkes, Esq.:

“Deportation rates of undocumented immigrants have ticked up in the federal Immigration Court for the first time in eight years as President Donald Trump starts to make good on his promise to expel millions of people. But even as the Trump administration expands its dragnet, the court is so backlogged that some hearings are being scheduled as far in the future as July 2022.

The long delays come as immigration courtrooms struggle with too few judges, only 334 for a backlog of more than 617,000 cases, and scant resources on par with a traffic court, said Judge Dana Leigh Marks of San Francisco, the president of the National Association of Immigration Judges.

Delays are the longest in San Francisco, where the court is setting dates more than four years out. Courts in Chicago, Boston, Atlanta, Cleveland, Detroit, Seattle and Arlington, Virginia are right behind with dates in 2021.

Immigration law is complex and the overloaded judges are making decisions about men and women who may have been tortured or raped, their children abused or forced to witness horrible acts, or who fear they will be killed if they return home.

“I compare the immigration courts to traffic courts and the cases that we hear – they are death penalty cases.”
Judge Dana Leigh Marks

“I compare the immigration courts to traffic courts and the cases that we hear – they are death penalty cases,” said Marks, a judge for 30 years who was speaking in her capacity as association president. “And I literally get chills every time I say that because it’s an incredibly – it’s an overwhelming job.”

The backlog in Immigration Court, which unlike other courts is not independent but part of the U.S. Justice Department, has been growing for nearly a decade, up from about 224,000 cases in fiscal year 2009. The average number of days to complete a deportation case has risen from 234 in 2009 to a projected 525 this year.

A couple in Immigration Court in New York City for the first time on Sept. 21 came to the United States to escape violence in Ecuador, they said, overstaying a visa as they applied to remain permanently in 2013. They were expecting to finally to explain their circumstances to a judge, but instead they were out the door in less than five minutes with a return date in 2020.

“I don’t even know, how do I feel,” said the woman, who did not want to give her name. “I feel frustrated.”

The logjam began during the Obama administration as President Barack Obama boosted immigration enforcement while a divided Congress cut spending. The Justice Department saw a three-year hiring freeze from 2011 to 2013, which then became even worse when tens of thousands of women and children came across the border escaping violence in Central America.

“I don’t even know, how do I feel,” said the woman, who did not want to give her name. “I feel frustrated.

“The problem was years in the making but this administration is making it much, much worse,” said Jeremy McKinney of the American Immigration Lawyers Association.

Obama was famously called the “deporter-in-chief” after he not only targeted immigrants with criminal records for deportation but also instituted formal removal proceedings for an increased number of unauthorized border crossers, according to a January study by the Migration Policy Institute. At the same time, fewer people were crossing the border because of a better economy in Mexico and fewer jobs in the U.S. after the recession.

The focus on criminals — whose hearings, when they were detained, were either short or waived — resulted in quick deportations, McKinney said. The Trump administration is targeting a much broader group and includes people who might be eligible to stay and that puts more strain on the courts, McKinney said.

“They will arrest anyone that has a pulse and that they suspect is in the United States without permission regardless of if that person poses a risk to our community,” he said.

To clear the backlog, the Trump administration has proposed hiring 75 new Immigration Court judges plus staff, a number the House has reduced to 65, and it has considered expanding the use of deportations without court approval. In the meantime it has moved some judges closer the border temporarily, but that leaves behind even greater backlogs in their home courts.

But the job of an immigration judge is difficult and those in the courts warn that hires are not keeping up with departures. Long background checks dissuade many except for attorneys already working for the government from applying, they say.

The government is trying to quicken the process by resisting delays it formerly acceded to, McKinney said. For example, he said, government lawyers are now opposing a temporary halt to deportation cases to allow an immigrant who might be eligible to remain in the United States to take the steps that are necessary.

“So you’ve got people that are eligible for green cards but are not able to pursue it because suddenly the government is opposing the motion to close those cases,” he said.

And it is also reopening cases that were closed during the previous administration, a move that could add to the delays, McKinney said.

“They’re taking old cases and dumping those into current dockets that are already overflowing,” he said. “These individuals are ones that were previously determined that they were not priorities for deportation.”

One consequence of the logjam until recently had been that judges were deporting fewer immigrants. Last year, just 43 percent of all cases ended with a deportation removal, down from 72 percent in 2007.

That downward trend is beginning to reverse this year. The deportation rate rose slightly over the first 10 months of the 2017 fiscal year, to 55 percent, from 43 percent for all of the previous fiscal year. Among immigrants in detention, the deportation rate rose to 72.3 percent.

The outcome of a case can depend on the location of a court. Georgia has deported the vast majority of immigrants in court this year, New York ousted less than a third. Houston has expelled 87 percent of the immigrants, while Phoenix is at the low end with 20 percent.

You appear to be in Virginia. Not your state?

In Virginia, 56.0% of immigrants who go to court are deported.

See the rates of deportation in state immigration courts across the country:

Fiscal year 2017 (October through July); Source: TRAC

WHO ARE THESE IMMIGRANTS?

More than half of the 11 million undocumented immigrants in the United States are from Mexico but their number has declined by about 1 million since 2007. They have been replaced by those fleeing violence in Guatemala, El Salvador and Honduras, plus immigrants from elsewhere. They live mostly in California, Texas, Florida, New York and New Jersey though the state with the highest percentage of undocumented immigrants is Nevada.

Nearly 60 percent arrived in the U.S. before 2000 and a third have been here for more than 20 years. Eight million of the 11 million have jobs. They make up 5 percent of the country’s labor force, mostly in agriculture, construction and the hospitality industry. They are much younger and somewhat more male than the population as a whole.

The long delays in Immigration Court are jeopardizing some immigrants’ chances. They risk losing touch with witnesses they will need or the death of relatives who would enable them to stay. They may have children back in their home country who are in danger. And although they are entitled to lawyers, they must pay for them.

“And so it is very frustrating and stressful frankly for the litigants in our courts to be in that limbo position for such a long period of time,” Marks said.

The couple who fled violence in Ecuador has built a new life in the U.S. She is now a teacher, he works with hazardous materials and they have three American-born children. With no resolution of their case, they remain in that limbo.

“We’re stuck here,” she said.

Christina Wilkes, an immigration lawyer at Grossman Law in Rockville, Maryland, is representing a mother, identified as Z.A., who arrived with her daughter and son from El Salvador in 2014 after a gang tried to recruit the daughter.

In Washington, D.C., Maryland and Virginia the number of cases has more than tripled in past five years, with some cases taking more than four years to be heard.

The daughter’s application for permanent residency has been pending since the beginning of the year when a judge granted her asylum, Wilkes said. But the mother still does not have a date for a judge to hear her asylum case, though the facts for both are nearly identical.

“For her, where her likelihood of success is relatively high, it’s really frustrating because she wants a resolution,” Wilkes said.

Andres, whose last name NBC is witholding, left Guatemala in August 2014, because he was discriminated against there, he said. He speaks Mam, a Mayan language, and dressed in traditional clothing, both of which made him a target.

“Because I’m indigenous, that’s why they discriminated against me,” he said. “A policeman would beat me, and we don’t have any rights because they rule. The Spanish speakers are the ones who rule all parts of the country.”

He has a work permit, he said, and is employed in construction. But he has twice had his asylum hearing postponed in Immigration Court in San Francisco and says he is scared that as he waits for his new date in January he will detained and deported.

Those waiting to have their asylum cases heard find the reality that there currently aren’t enough judges and staff to handle the demand leaving some applicants forced to wait for years while their witnesses and key evidence disappear.

“Because that is happening where I live in Oakland,” he said.

Shouan Riahi, an attorney with the non-profit Central American Legal Assistance in Brooklyn, New York, said that the delays are causing particular problems for those seeking asylum. If a court date is set years in the future, they might not think it’s important to meet with a lawyer immediately or know they face a one-year deadline for asylum applications.

“So that creates a whole host of issues because a lot of people that are applying for asylum now are people who didn’t have their hearing scheduled within a year,” he said. “And never went to see an attorney because why would you if your case is in 2019 and now their cases are being denied because they haven’t filed for asylum within a year.”

Some judges are counting the delays as an exceptional circumstance and are accepting the applications as filed on time, but others are turning immigrants away. Riahi’s office is appealing those cases and he expects some to end up in federal circuit court.

Other who are getting caught up in the delays are children who have been neglected, abused or abandoned and are eligible for special immigrant juvenile status. In some courts they are being deported before they receive their visas, he said.

Paul Wickham Schmidt, a retired immigration judge who served in Arlington, Virginia, for 13 years, said that the delays do not serve due process or justice.

“It’s not fair either way,” he said. “It’s not fair to keep people with good claims waiting, but it’s not really fair that if people have no claim their cases sort of aimlessly get shuffled off also. That leads to loss of credibility for the system.”

ABOUT THE DATA

These stories are based on enforcement, budget and demographic data from the federal government and nonprofit groups.

Our primary source for information on operations of the Immigration Court was the Transactional Records Access Clearinghouse. TRAC, a nonprofit at Syracuse University, has collected and organized data from federal law enforcement agencies for decades and makes that data available to the public. Its website is trac.syr.edu. TRAC is funded by grants and subscription fees; NBC subscribed to TRAC during this project.

Information about the size and demographics of the undocumented immigrant population came from two primary sources: the Pew Research Center and the U.S. Department of Homeland Security. Both groups use a roughly similar technique, the residual method, to estimate the undocumented population, and reach similar estimates of its size. For a brief description of the residual method, go here.

Some of the best information on the immigrant population as a whole as well as historic perspective on immigration enforcement comes from the Department of Homeland Security’s Yearbook of Immigration Statistics. It is available here. The most recent year for which statistics are available is 2015, though 2016 statistics should be provided shortly.”

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Here’s a link that will get you a version where all the links graphs,  and charts work: http://www.nbcwashington.com/news/national-international/Immigration-Crisis-in-the-Courts-446790833.html

Next up, the EOIR/DOJ response!

PWS

09-26-16

HERE’S PT. I OF NBC4’s “CRISIS IN THE IMMIGRATION COURTS,” FEATURING JUDGE DANA LEIGH MARKS & ME DISCUSSING BACKLOGS!

SEE THE I-TEAM’S JODIE FLEISCHER’S REPORT HERE (PT I):

http://www.nbcwashington.com/investigations/Crisis-in-the-Courts-DMV-Immigration-Courts-Scheduling-Hearings-for-2021-446917903.html

“Crisis in the Courts: DC-Area Immigration Courts Scheduling Hearings for 2021

“Immigration is clearly an issue that divides the nation. Who should be allowed to stay in the US? Who should have to go?

Whether you support immigration or oppose it, the backlog in our nation’s immigration courts will disturb you.

People who shouldn’t be here, get to stay for years and build a life while they wait. And those who do legally deserve to stay may have family in danger back home, while their cases face delay after delay.

The News4 I-Team spent months working with NBC investigative teams across the country to examine our nation’s immigration case backlog.

In Washington, D.C., Maryland and Virginia the number of cases has more than tripled in past five years, with some cases taking more than four years to be heard.

“The quality of their lives are deeply affected by whether or not they’re allowed to stay,” said National Association of Immigration Judges President Dana Leigh Marks, adding that the decisions are incredibly tough.

They often involve people who faced violent assaults, religious persecution, even government oppression and torture in their home country.

“The cases that we hear, they are death penalty cases,” said Marks. “A lot of people tell us that they fear for their very life if they’re sent back to their home country.”

And by the time many of them make it into a courtroom, their definition of “home” has likely changed.

‘I Consider Myself American’

Jonathan Claros was born in El Salvador, but his home is now Montgomery County, Maryland.

“I consider myself American. I know some people are against that,” he said.

At 29, he’s been here almost half his life. He taught himself English, graduated from high school in Gaithersburg and works in construction.

“This country is made of immigrants,” Claros said. “It doesn’t matter what color they are, or race or ethnicity.”

What does matter is whether you come here legally.

Just last month, ICE deported Jonathan’s brothers, the youngest was a 19-year-old soccer star who was set to start college on a scholarship.

“They came here when they were little. They know better this country than where they were born,” Claros said.

Their parents and sister are all in Maryland and equally worried about the current state of the U.S. immigration system.

“What they’re doing right now for me is, you know, it’s devastating,” Claros told the News4 I-Team. “A lot of families have been separated from their loves.”

Three years ago he married a U.S. citizen and filed paperwork to get legal status.

“It’s been kind of hard; it’s been almost a year waiting for an answer,” he said of the delay.

US Immigration by the NumbersUS Immigration by the Numbers

An overview of immigration in the U.S., by the numbers.

(Published Monday, Sept. 25, 2017)

‘It’s a Disaster. I Think It’s Moving Toward Implosion’

 The nationwide backlog of immigration cases topped 617,000 this summer. The courts in Arlington and Baltimore handle all of the cases for D.C., Maryland and Virginia — more than 58,000 of them as of July. And that doesn’t even include immigrants who are here illegally and completely undocumented.

The News4 I-Team found a new immigrant walking into the Arlington court today could have to wait until December 2021 for a hearing; that’s the second longest delay in the nation.

“It’s a disaster. I think it’s moving toward implosion,” said Judge Paul Wickham Schmidt, who retired last year from Arlington’s immigration court, after 13 years on the bench.

“We probably had 9 to 10,000 each on our dockets,” said Schmidt. “I think sometimes we minimize the difficulty of having your life on hold.”

He said the system is painfully slow for several reasons, and the first is really basic: The entire system operated on paper. With no way to e-file cases or review briefs or documents online.

“They don’t let you see the inside of an immigration court. If they did, they’d clean it up! But there are files piled all over: They’re in the corridors, they’re all over the desks, they’re under desks,” said Schmidt, who can speak freely since he’s retired.

He said judges have to physically be in their offices to review files, which is especially difficult with a new administration policy that reassigns some judges to hear cases at the border.

That leaves courtrooms empty back in their home court and a full docket of cases that get pushed to the back of the line.

During the delay, witnesses who could help the immigrant’s case might disappear, and attorneys and judges could move or retire, causing more delay.

“The cases that are actually ready to go are being put to the end, and the judges are being assigned to cases of recently arrived individuals, many of whom haven’t had time to get lawyers. So I think it’s a misuse of resources,” said Schmidt.

He said there aren’t enough attorneys to keep the system moving, and having representation significantly impacts someone’s chance of staying.

The new administration has also eliminated prosecutors’ discretion to dismiss or delay thousands of low priority cases: People who haven’t committed a crime or have family members who are citizens.

“There’s only so much judge time,” said Schmidt, “and if you use it for people who are low priorities, then there’s some other person who isn’t getting a hearing.”

He added that with political priorities constantly shifting, judges should have control over which cases to call first.

‘People Are Being Hurt by These Delays’

“Unfortunately despite our best efforts, there are people being hurt by these delays, and they can be avoided if we would get sufficient resources,” said Judge Marks.

She said the court needs twice as many judges to tackle that backlog. But right now, the court’s budget and its management are within the Department of Justice, which is another major issue for the judges association.

“The way to assure stakeholders, the people who come before us, that they are being treated fairly is that we should be taken out of the Department of Justice and made a neutral court system,” said Marks.

She said Congress needs to look at the whole system and take action so the political climate surrounding immigration doesn’t impact whether or when people get their day in court.

“It is not a Democratic or Republican issue,” said Marks. “If you want to have increased focus on the border courts, fine. But build courts, hire judges and put them there before you start that program.”

The Justice Department told the News4 I-Team it’s committed to increasing the number of judges; an additional 65 judge positions are already budgeted for next year.

But that still doesn’t solve the problem of dozens of vacant positions, and sitting judges retiring.

There’s also an agency-wide review already underway which aims to identify ways to increase efficiency, through changes to court procedures and technology.

The DOJ’s Executive Office for Immigration Review, which manages the court system, says its mission is to fairly, expeditiously and uniformly interpret and administer the nation’s immigration laws.

‘You’re Not Going to Get Every Single One Right’

Like Jonathan Claros, nearly half of all of the immigrants caught in the backlog in our area are from El Salvador — more than 28,760 people. But Judge Schmidt said the courts do not treat all nationalities equally.

“The law is sort of tough on Central American cases. Some of them can make it, some of them don’t,” said Schmidt, “An Ethiopian with an asylum claim, they almost always get granted.”

The court data shows the location also factors into whether an immigrant has a better chance of being able to stay.

The national average is just over 56 percent. Here in the D.C. area, it’s 61 percent. Los Angeles is 70 percent.

“Clearly, the attitudes of the judges and how they feel about asylum law has quite a bit to do with it,” said Schmidt, “If I were an immigrant, I’d rather be in California than Atlanta, Georgia. Any day.”

In one Georgia court, only 13 percent of people are allowed to stay in the U.S.

Schmidt said the appellate boards also lack consistency in their decisions.

“As a result, judges don’t get the guidance they need. The board doesn’t crack down on judges who are way out of line with what the law should be,” he said, adding that immigrants deserve to know their fate sooner.

Our system simply doesn’t allow for that.

Schmidt said with the volume of cases, the gravity of his difficult decisions was often emotional.

“You’re not going to get every single one right, and you think about the lives that you might have destroyed that you could have saved, and of course that weighs on you,” he said.

Jonathan Claros said he still believes in the American dream. He’s just worried his family’s heartache will keep growing while he waits for an answer.

“Everybody’s afraid,” he said. “They go out, but they don’t know if they are going to come back home again. It’s hard to live like that.”

Reported by Jodie Fleischer, produced by Rick Yarborough, shot and edited by Steve Jones.

Source: Crisis in the Courts: DC-Area Immigration Courts Scheduling Hearings for 2021 – NBC4 Washington http://www.nbcwashington.com/investigations/Crisis-in-the-Courts-DMV-Immigration-Courts-Scheduling-Hearings-for-2021-446917903.html#ixzz4tjp7to2P
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook”

See Part II on News4 at 11:15 tonight!

PWS

09-25-17

NBC’S PETE WILLIAMS REPORTS: “Trump to Replace Travel Ban With Revised Requirements”

https://www.nbcnews.com/news/us-news/trump-replace-travel-ban-revised-requirements-n803836

NBC’S veteran Legal Reporter Pete Williams (one of my all-time favorites) reports:

“WASHINGTON — The White House could issue new requirements this weekend for travelers entering the United States, replacing President Donald Trump’s controversial ban on visitors from six Muslim countries, administration officials tell NBC News.

The announcement, expected by Sunday, will supersede the 90-day travel ban on issuing visas to visitors from Iran, Libya, Somalia, Sudan, Syria, and Yemen, which expires Sunday.

The new restrictions will be based on a Homeland Security and State Department review of the kinds of information that must be provided about visitors and immigrants hoping to enter the U.S. The new guidelines are aimed at preventing terrorists and other security threats from entering the country, officials said.

Following the review, the State Department asked U.S. diplomats around the world to gather the information from foreign governments, warning that visitors will be eligible to enter the country only after the requests are fulfilled.

Once those responses came back, Homeland Security and State Departments reported to the White House on which countries agreed to provide the required information and conform to US requirements, and which did not.

Based on that report, the White House is expected to announce the new restrictions, probably in the form of a presidential proclamation, administration officials said. For many countries on the list, visas will be restricted, meaning that only specified categories of travelers can get them.

Any country that flunks the test can get itself off the list by agreeing to conform to the US requirements, which include issuing electronic passports with a photo, regularly reporting passport thefts, and notifying the US of suspected terrorists. Plus countries must also “take measures to ensure that they are not and do not have the potential to become a terrorist safe haven.”

The original White House order, imposed in January, caused chaos in some of the nation’s airports as customs officials were left to interpret the meaning of the surprise order. After it was struck down in court, a revised order was issued in March.

The executive orders have faced a litany of legal challenges. The Supreme Court ruled in June that parts of the current travel ban could be enforced until the court hears argument, on October 10, about whether the president had authority to impose it in the first place.

Lawyers tell NBC News they are unsure what this latest move could mean for the case.”

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

I think this action by the Administration is likely to “moot out” the case currently pending before the Supreme Court.  That seems to be the result the Court was “hinting at” when it issued its partial stay earlier this summer.

PWS

09-22-17

 

BREAKING: CAN WE BELIEVE THIS? — NBC Reports That Trump & Dems Cut Deal To Save Dreamers Over Dinner!!!

http://www.nbcwashington.com/news/politics/Ryan-Deporting-Young-Immigrants-Not-in-Nations-Interest-444252723.html

Jill Colvin reports:

“President Donald Trump told lawmakers Wednesday that he’s open to signing legislation protecting thousands of young immigrants from deportation even if the bill does not include funding for his promised border wall. But Trump remains committed to building a barrier along the U.S.-Mexican border, even if Democrats say it’s a non-starter.
Trump had dinner with Sen. Chuck Schumer and top Democrat Nancy Pelosi Wednesday night, and they reached a deal on DACA, according to a joint statement by the democrats.
“We agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides,” the statement read.
Trump, who was deeply disappointed by Republicans’ failure to pass a health care overhaul, infuriated many in his party when he reached a three-month deal with Sen. Schumer and House Democratic Leader Pelosi to raise the debt ceiling, keep the government running and speed relief to states affected by recent hurricanes.

Trump ended the program earlier this month and has given Congress six months to come up with a legislative fix before the so-called “Dreamers'” statuses begin to expire.
“We don’t want to forget DACA,” Trump told the members at the meeting. “We want to see if we can do something in a bipartisan fashion so that we can solve the DACA problem and other immigration problems.”
As part of that effort, Trump said he would not insist on tying extending DACA protections to wall funding, as long as a final bill included “some sort of border security,” said Democratic Rep. Henry Cuellar of Texas, who attended the meeting.

“He said, ‘We don’t have to have the wall on this bill,'” recalled Cuellar. “He said: ‘We can put that somewhere else, like appropriations or somewhere.’ But that was very significant because a lot of us don’t want to tie DACA and the wall. We’re not going to split the baby on that one. So he himself said, ‘We’re not going to put the wall tied into this.'”
Trump has made a sudden pivot to bipartisanship after months of railing against Democrats as “obstructionist.” He has urged them to join him in overhauling the nation’s tax code, among other priorities.
“More and more we’re trying to work things out together,” Trump explained Wednesday, calling the development a “positive thing” for both parties.

“If you look at some of the greatest legislation ever passed, it was done on a bipartisan manner. And so that’s what we’re going to give a shot,” he said.
The “Kumbaya” moment appeared to extend to the thorny issue of immigration, which has been vexing lawmakers for years. Funding for Trump’s promised wall had been thought to be a major point of contention between Republicans and Democrats as they attempted to forge a deal.
Democrats have been adamant in their opposition to the wall, but both Pelosi and a top White House staffer indicated Tuesday that they were open to a compromise on border security to expedite DACA legislation.

White House legislative director Marc Short said during a breakfast that, while the president remained committed to the wall, funding for it did not necessarily need to be linked directly to the “Dreamers” issue. “I don’t want us to bind ourselves into a construct that makes reaching a conclusion on DACA impossible,” he said.”

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

I have to admit that I’m stunned by this swing of the pendulum. But, I’m pleased and relieved for the great Dreamers if it works. The Devil is often in the details, particularly with immigration.

On this occasion, I’ll have to agree with the President that bipartisan legislation putting the best interests of the country first is a good thing, and a smart way for the President to get credit for some legislative achievements.

We’ll have to see what happens, But, it’s nice to end the day on a more optimistic note.

PWS

09-13-17

UPDATE:

The Devil is indeed in the details!  According to this more recent article from Sophie Tatum at CNN (forwarded by my friend and fellow insomniac Nolan Rappaport) the “deal” is far from done and the White House version of  the meeting is not the same as the Schumer-Pelosi statement:

“White House press secretary Sarah Sanders immediately pushed back on the idea the wall would be dropped.
“While DACA and border security were both discussed, excluding the wall was certainly not agreed to,” Sanders said.
White House Legislative Affairs Director Marc Short confirmed that the President and Democrats agreed to work to find a legislative fix for DACA, but he called Democrats’ claim of a deal that would exclude wall funding “intentionally misleading.”

http://www.cnn.com/2017/09/13/politics/chuck-schumer-nancy-pelosi-donald-trump/index.html

Stay tuned!

PWS

09-14-17

 

 

 

JULIA EDWARDS AINSLEY & ANDREW BLANKSTEIN AT NBC: Weather Forces ICE To Cancel Mega-Bust!

https://www.nbcnews.com/news/us-news/ice-plans-mega-largest-immigration-raid-operation-its-kind-n799691

“WASHINGTON — President Donald Trump’s Department of Homeland Security had planned nationwide raids to target 8,400 undocumented immigrants later this month, according to three law enforcement officials and an internal document that described the plan as “the largest operation of its kind in the history of ICE,” an acronym for U.S. Immigration and Customs Enforcement.

But after NBC News reported the plans late Thursday, the agency issued a statement saying it had cancelled nationwide enforcement actions due to Hurricane Irma and the damage caused by Hurricane Harvey.

. . . .

It is not unusual for ICE operations to target immigrants by the hundreds or even low thousands. The higher-than-usual target number may have been partially driven by an effort to reach a deportation goal by the end of the fiscal year, which ends Sept. 30, one of the officials said.

The cancelled operation comes on the heels of Trump’s controversial decision to end the Deferred Action for Childhood Arrivals program, known as DACA, that allows some immigrants who were brought into the United States as children to stay.

ICE had been planning the operation internally since mid-August and had instructed officers in the field to target adults deemed to be gang members or perpetrators of serious crimes, said one of the officials. Other undocumented immigrants not suspected of crimes may have been swept up in the raids as “collateral,” the official said.

Immigration agents often only arrest one-quarter to one-half of the target population due to the difficulty of locating individuals and getting them to open their doors to agents.”

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

Read the full story at the link.

Yup, gotta jack up those fiscal year-end numbers with plenty of “collaterals.” Year-end performance bonuses could be at risk here!

Of course, a more rational factor might be that we’re not going to be able to rebuild and recover from multiple major hurricanes without the help of immigrants, both documented and undocumented. Gonzo’s fabrications notwithstanding, there aren’t enough other American workers available with the skills and work ethic to get the job done. And, if Gonzo has his way, the worker shortage will become chronic and tank our economy. But, ruining America is well worth it to build the White Nationalist Empire that Trump, Bannon, and Sessions envision.

Also, congratulations to the fantastic Julia Edwards Ainsley on starting her new gig at NBC News! Julia formerly was the Washington Reporter for Reuters. Different organizations, same incisive reporting!

PWS

09-07-17

 

 

NEWSWEEK: Gonzo Apocalypto’s Next Targets: The 1st Amendment & Reporters — Truth-Challenged Press Conference Assails “Leakers!”

http://www.newsweek.com/sessions-leaks-trump-fired-fake-news-media-cnn-mueller-comey-obama-golf-646838?spMailingID=2132659&spUserID=MzQ4OTU2OTQxNTES1&spJobID=850160461&spReportId=ODUwMTYwNDYxS0

Jeff Stein reports:

“Another day, another Donald Trump show. The president was absent from the elaborate press conference that Attorney General Jeff sessions held at the Justice Department on Friday to showcase the administration’s intent to crack down on leaks.

But his looming presence was palpable. The president reportedly often watches and critiques the TV performance of his officials.

“This culture of leaking must stop,” Sessions said, echoing Trump’s increasingly bitter tweets.

Flanking Sessions were Deputy Attorney General Rod Rosenstein, the Director of National Intelligence, Daniel Coats and William Evanina, head of the little-known National Counterintelligence and Security Center.

“Conspicuously absent,” The Washington Post noted, “were representatives for the FBI, which generally investigates leaks.” Rosenstein said the new FBI Director, Christopher Wray, wasn’t there because he had just started his job this week.

Unlikely. Wray’s office is just a short walk across Pennsylvania Avenue from the Justice Department. If Wray were unavailable, plenty of other top FBI officials certainly were. Under a president obsessed with how his officials come across on television, the exclusion of them seemed deliberate.

. . . . .

The tableau presented by Sessions, who is struggling to hold on to his job after weeks of withering criticism from Trump for recusing himself from the Russia investigation, seemed designed to suggest to the president’s political base that other, more trusted security agencies would play a prominent role in the leak investigation.

Not going to happen. As opposed to what the TV pictures might suggest, U.S. intelligence agencies are barred from criminal investigations of leaks (although they conduct their own internal probes).  

“Only the FBI has jurisdiction to conduct that type of investigation,” Robert L. Dietz, who has held senior legal positions at the CIA, NSA, the National Geo-Spatial Agency and the Defense Department, tells Newsweek. “Indeed, the entire intel establishment has no authority over leaks.”

. . . .

Historically, critics of leak investigations, including government officials, have called them “a fool’s errand.” They can often lead right back to the offices of the White House or cabinet official who demanded them.

But Sessions added a dark element to his Friday announcement, suggesting he might start issuing subpoenas to reporters. The secret monitoring of media organizations could well accompany such investigations, history shows.

Press freedom organizations denounced the idea. The Reporters Committee for Freedom of the Press said it would “strongly oppose” a revision of Obama administration guidelines generally prohibiting such subpoenas. It also announced it had set up a toll-free hotline for reporters to call for legal advice if they got a subpoena.

Most leaks involving controversial Trump administration policies and its in-fighting and chaos have not included classified information. But some national security officials, both Democrats and Republicans, said Thursday they were shocked by the leaks of complete transcripts of Trump’s private telephone conversations with the president of Mexico and prime minister of Australia. Both transcripts revealed Trump saying things in stark contrast to his public positions. He had denounced previous reports characterizing the calls—accurately, as it turned out—as “fake news.” Sessions indicated he was going to get to the bottom of who leaked the transcripts.

But far from being investigated and punished, whistleblowers should be recognized as playing an important role in a democracy, says Danielle Brian, executive director of the Project on Government Oversight, a Washington, D.C. nongovernmental organization. Leak probes, she said, can stumble onto rightful efforts to expose crimes by government officials.

“Whistleblowers are the nation’s first line of defense against fraud, waste, abuse and illegality within the federal government,” Brian told The Washington Post. “The last thing this administration wants to do is to deter whistleblowing in an effort to stymie leaks.”

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

Notable that Sessions’s so-called “press conference” (is it really a “press conference” if you don’t take questions from the press?) was actually a performance aimed at reassuring President Trump that he was “on message” after being accused (falsely) by the President of being “weak on leaks.”

There is one major disclosure of classified information that should concern all Americans: Trump’s cavalier offering of sensitive documents to the Russians, who are not our friends or allies. Other than that, most of the “leaked” information consists of what NBC’s Chuck Todd would call “water cooler stuff” that more likely than not was “leaked” by members of Trump’s own “inner circle” as part of the never ending “palace intrigues” and “power struggles” surrounding the West Wing. While it’s easy to understand why truth could be embarrassing to Trump and his minions, its not by any means a threat to national security. No, the biggest REAL thereat to our national security remains President Trump himself.

PWS

08-07-17

NORTHERN VIRGINIA PASTOR CAUGHT UP IN DHS WEB OF CRUEL, INDISCRIMINATE, & WASTEFUL ENFORCEMENT — WHILE SON FIGHTS FOR OUR COUNTRY IN AIR FORCE, GEN. KELLY & CO. PLAN TO SHOW APPRECIATION BY DEPORTING HIS FATHER!

http://www.nbcwashington.com/news/local/ICE-Detains-Northern-Virginia-Pastor-435897973.html

NBC Northern Virginia Bureau Chief Julie Carey reports:

“Faith groups around the Commonwealth are mobilizing to support a Northern Virginia pastor who may soon be deported.

Pastor Juan Gutierrez typically leads a small service of about 10 to 20 members at his home every Saturday in Dumfries, Virginia. But on Saturday, that number is expected to grow for a day-long vigil in support of his family.

Gutierrez went to the Immigration and Customs Enforcement Office for his usual check-in in late June, when he was suddenly taken into custody.

“I say why? He do everything like the rules say,” Gutierrez’s wife Aurelia Sicha said. “I was really sure surprised. I started to cry.”

Gutierrez came to the U.S. from Peru in 2002 with a visa to play music. Sicha, who is a U.S. citizen, became pregnant and he stayed to help care for their family.

ICE is now enforcing an order of removal Gutierrez received in 2012.

“I understand my husband broke the rules of this country because he’s here without the visa, but he’s a good man. Never he do [anything] wrong. He’s a pastor. He’s a preacher. The word of God,” Sicha said.

An ICE official confirmed to News4 that Gutierrez does not have a criminal record, writing in a statement, “As DHS Secretary Kelly and Acting ICE Director Homan have stated repeatedly, ICE prioritizes the arrest and removal of national security and public safety threats; however, no class or category of alien in the United States is exempt from arrest or removal.”

The couple has a son in the U.S. Air Force and a 13-year-old daughter.”

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

See Julie’s video report, which also appeared on NBC 4 locally at the link.

I have pointed out that Kelly’s once sterling reputation will end up in the trash bin unless he starts showing some backbone and standing up to the arbitrary and wasteful enforcement program espoused by the Trump White Nationalists and some (but not all) of his own agents. Good law enforcement is not just an exercise in keeping the line agents happy, any more than leading a successful military operation is just about keeping the troops happy. It’s about using limited resources wisely, humanely, and with some rational purpose in mind to achieve some legitimate strategic goal. Arbitrarily enforcing a broken and unworkable law does none of the foregoing. So far, Kelly has come up disturbingly short on almost all accounts.

PWS

07-21-17

 

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

C

The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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

Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17