DREAMERS “LEFT OUT” AGAIN – CONTEMPLATE NEXT MOVE – News & Analysis From Tal @ CNN

https://www.cnn.com/2018/02/10/politics/daca-left-out-what-next/index.html

The “Amazing Tal” writes:

“Washington (CNN)As the ink dried Friday on a major budget compromise deal in Congress, immigration advocates were taking stock of getting left behind — again — without a resolution for hundreds of thousands of young undocumented immigrants on the verge of losing protections.

It’s an open question if there are cards left to play in the push to enshrine the Deferred Action for Childhood Arrivals policy into law. While no advocates say they are giving up, many also openly admit that Democrats and allies gave up their best negotiating position on the issue without another clear avenue coming up.
In the meantime, a pending court decision on DACA, which President Donald Trump is terminating, means the immigrants protected by it and who mostly have never known another country than the US, won’t begin losing their protections as planned on March 5 — but their fate could be reversed at any moment by another court decision.
Rep. Luis Gutierrez, an Illinois Democrat who has long served as one of the most outspoken advocates in Congress for immigration reform, was pessimistic with reporters early Friday morning as Congress passed the deal with virtually every Democratic priority except DACA in it.
“No, I don’t, I don’t,” he said when asked if there was any other way Democrats could exert leverage on the issue. Gutierrez said the plan from the beginning was to either attach a DACA compromise to the must-pass budget deal or raising the debt ceiling, both of which were passed in the early morning hours Friday without DACA. Arizona Democrat Raul Grijalva called the episode “disheartening.”
close dialog
“We have decoupled the issues. Your leverage is you want them one and the same,” Gutierrez said. “Do we need a new way forward? Yeah, we’re going to figure out a new way forward.”

Step 1: Senate vote next week

There is one glimmer of hope for advocates. Senate Majority Leader Mitch McConnell made good on his promise to tee up an immigration debate on the Senate floor next week. Moments after the Senate passed the deal, McConnell filed to have a vote to open debate on an unrelated bill Monday evening — which will kick off a process where an as-yet-unknown number of amendments will be able to compete for a procedural threshold of 60 votes to then pass the Senate.
It was that promise that put in motion the deal that eventually severed DACA from other negotiations but also offers a rare opportunity for lawmakers to compete on a neutral playing field for bipartisan support.
“We’re pivoting, what can you do?” said longtime advocate Frank Sharry, executive director of the pro-immigration group America’s Voice. “We’ve had our doubts about the viability of a standalone legislative process but that’s what we’re left with, so we’re hoping to make the most of it. … That will put pressure on the President and the House to do the same.”
Already, groups of lawmakers are preparing for the floor debate, even as it remains unclear how many amendments will be offered, how debate will be structured and how long it might last.
A group of roughly 20 bipartisan senators is drafting legislation over the weekend to offer perhaps multiple amendments and potentially keep the debate focused on a narrow DACA-border security bill. Advocates on the left may offer a clean DACA fix like the Dream Act, and some on the right are drafting a version of the White House proposal that would include $25 billion for a border wall and heavy cuts to legal immigration with a pathway to citizenship — though neither is expected to have 60 votes.
“First of all, we have the Senate procedure, which is my hope. We’re working with the (bipartisan group) to see if we can come to a two-pillar solution,” said Sen. Bob Menendez, a New Jersey Democrat who has long worked on the issue, when asked Thursday what comes next for DACA. “Hopefully we could gather 60 votes for that. And then that would be it — we’d resist everything else, any other amendments, and then go back to the House and create all the pressure in the House to make it happen.”

Step 2: Pressure Ryan

If the Senate can pass a bill, lawmakers hope Trump will fully embrace it, freeing House Speaker Paul Ryan to call it up.
Already as the budget deal was on track for passage, House advocates began a pressure campaign to urge Ryan to make a promise like McConnell — though Ryan continually demurred and insisted instead he’s committed to the issue of immigration and passing a bill the President can support.
“I think we have to be realistic,” said Arizona’s Democratic Rep. Ruben Gallego. “We’re going to have to deal with reality and find whatever means possible to put pressure on Speaker Ryan and the Republican Party to bring, again, a fair vote on the Dream Act to the floor.”
“I think for me the strategy has to be pressure Ryan and bring it to the floor,” Grijalva said, adding the process should allow any proposal to vie for a majority — even if it doesn’t have a majority of Republican votes. “The Senate, when they gave up on not voting for it, at the very minimum extracted a time certain and a debate on something. We don’t even have that.”
Democrats also may have some Republican supporters in the House to pressure Ryan. A bipartisan group of lawmakers that includes two dozen Republicans sent a letter to Ryan asking to open a floor debate like McConnell.
Republican Charlie Dent of Pennsylvania said he’s been urging fellow moderates to use their numbers the way that conservatives on the right flank do.
“The Freedom Caucus has been effective because they’ll use their power of 24 (votes to deny a majority), and they take the hostage, they’ll do what they have to do,” Dent said. “I tell our members, we put our votes together, we can really direct an outcome. … I suspect if the Senate sends us a bipartisan DACA bill, that’s when we’re going to have to flex our muscles.”
But others have doubts. Republican Sen. Marco Rubio of Florida, a member of the bipartisan group, says he learned his lesson in 2013, when he co-authored legislation that passed the Senate with wide margins but died in the House.
“There are some who believe that if we get a bunch of votes it’ll force the House to do it. I don’t agree,” Rubio said. “We could vote on it 90-10. … This notion that the House is going to listen to what a senator tells them to do is not real.”

Step 3: Other leverage

If the legislative process can’t produce success, advocates say, they will look for any other leverage points they can.
“If that doesn’t work out, then there’s still an omnibus at the end of the day,” said Menendez, referring to the spending bills due in March to fund the government under the topline two-year budget deal passed Friday.
But Gutierrez doubted that approach — scoffing at the idea that Democrats would be taken seriously if they threatened to withhold their votes yet again without success.
“Really?” Gutierrez said about the omnibus as leverage. “Is it plausible? Is it realistic? Can you continue to threaten with something?”
Other options could include a temporary, one-year or two-year extension of DACA without a permanent solution, though lawmakers have decried that option.
Still, many aren’t ready to give up hope.
“This President clearly wants to get it done, I think the majority of Republicans want to get it done and the majority of Democrats want to get it done. Can we reach that balance? We can get there, I feel very confident we can get there,” said Florida’s Republican Rep. Mario Diaz-Balart.”
***************************************
Although it should be a “no brainer,” I’m not as confident as Rep. Diaz-Balart that this group can “get to yes.” A fair resolution of the “Dreamers” situation just isn’t very high on the GOP agenda, particularly in the House. And, both the Dreamers and the Dems are coming to grips with the obvious reality: if you want to set or control the agenda, you have to win elections!
We need Julia Preston to lock these folks in a room for awhile!
PWS
02-10-18

POLITICO: JULIA’S CONGRESS: “THE PRESTON GROUP” OF DIVERSE EXPERTS SOLVES THE “DREAMER ISSUE” WITHOUT A BATHROOM BREAK! — Perhaps They Need To Give Congress & The White House A Demo Of How They “Got To Yes!”

https://www.politico.com/magazine/story/2018/02/09/how-to-solve-immigration-experts-daca-216954

Julia writes:

. . . .

Members of the Model Congress: To simulate a real immigration negotiation, we tried to select participants from across the policy spectrum—advocates and operatives, defenders of more immigration and proponents of less. In the end, we ended up with a well-rounded expert group of four:

Theresa Cardinal Brown is director of immigration and cross-border policy at the Bipartisan Policy Center, a research group in Washington. She was an immigration policy adviser at the Department of Homeland Security under President George W. Bush from 2005 to 2008 and the agency’s attaché in Canada under Obama from 2008 to 2011. Before that, she served as director of immigration and border policy at the U.S. Chamber of Commerce.

Steven Camarota is director of research for the Center for Immigration Studies, a Washington think tank that seeks less immigration overall and has opposed past measures to legalize undocumented immigrants.

Leon Fresco, an immigration lawyer at Holland and Knight, was previously a staff member for Democratic Senator Chuck Schumer on the Senate Judiciary Committee, where he was one of the main drafters of the comprehensive immigration bill that passed the Senate in 2013.

Tom Jawetz is vice president for immigration at the Center for American Progress, a progressive policy group. As chief counsel to the immigration subcommittee of the House Judiciary Committee and adviser to Democrats, he helped negotiate an immigration reform bill in the House in 2014. It never went to a vote.

I acted as the moderator.

. . . .

The makings of a deal: So that’s where our negotiators ended up after two hours: A pathway to citizenship for Dreamers and a 50,000 reduction in visas across several categories that would last for some period of time.

. . . .

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

Find out how they got there by going on over to Politico at the above link and reading Julia’s entire report. Most impressive! Julia’s certainly got my vote for President!

PWS

02-09-18

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.


For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.


With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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

Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was  a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system. 

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 —  the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry.  The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

 

 

“NORMALIZING” THE ABSURD: While EOIR Touts Its Performance As Part Of Trump’s Removal Machine, Disingenuously Equating Removals With “Rule of Law,” The Ongoing Assault On Due Process In U.S. Immigration Courts Continues Unabated — Read The Latest SPLC Complaint About The Judges In The Stewart Detention Facility!

What if the U.S. Supreme Court proudly announced that as part of President Trump’s initiative to deregulate it had struck down 30% more regulations since Trump took office? What if the U.S. Court of Appeals for the Second Circuit announced that as part of the Administrations’s War on Drugs they had reassigned more U.S. District Judges to pretrial detention facilities and had produced 30% more convictions and 40% longer sentences for drug offenders than under the previous Administration. Might raise some eyebrows! Might show a lack of independence and due process in the Courts and lead one to believe that at least some U.S. Judges were betraying their duties to act impartially and their oaths to uphold the U.S. Constitution.

But yesterday, in truly remarkable press release, America’s largest court system, the United States Immigration Court proudly announced that they had joined the President’s xenophobic crusade against foreign nationals by assigning more Immigration Judges to railroad out of the country individuals detained, mostly without counsel, in remote locations along the Southern Border. EOIR touted that over 90% of the individuals in detention facilities lost their cases and were ordered removed from the U.S. (although as anyone familiar with the system knows, many of these individuals are refugees who have succeeded at rates of 43% to 56% on their claims over the past five fiscal years). To add insult to injury, EOIR had the audacity to caption its press release “Return to Rule of Law in Trump Administration!”

Don’t believe me? Check out the full press release here:

“Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, August 8, 2017

Return to Rule of Law in Trump Administration Marked by Increase in Key Immigration Statistics

The Executive Office of Immigration Review today released data on orders of removal, voluntary departures, and final decisions for the first six months of the Trump Administration.

 

The data released for Feb. 1, 2017 – July 31, 2017 is as follows:

 

  • Total Orders of Removal [1]: 49,983
    • Up 27.8 percent over the same time period in 2016 (39,113)

 

  • Total Orders of Removal and Voluntary Departures [2]: 57,069
    • Up 30.9 percent over the same time period in 2016 (43,595)

 

  • Total Final Decisions [3]: 73,127
    • Up 14.5 percent over the same time period in 2016 (63,850)

 

Pursuant to President Trump’s Jan. 25 Executive Order, “Border Security and Immigration Enforcement Improvements,” the Department of Justice mobilized over one hundred existing Immigration Judges to Department of Homeland Security (DHS) detention facilities across the country. Over 90 percent of these cases have resulted in orders requiring aliens to depart or be removed from the United States. The Justice Department has also hired 54 additional Immigration Judges since President Trump took office, and continues to hire new Immigration Judges each month.

 

In addition to carrying out the President’s Executive Order, the Justice Department is also reviewing internal practices, procedures, and technology in order to identify ways in which it can further enhance Immigration Judges’ productivity without compromising due process.

 

[1] An “order of removal” by an Immigration Judge results in the removal of an illegal alien from the United States by the Department of Homeland Security.

[2] Under an order of “voluntary departure”, an illegal alien agrees to voluntarily depart the United States by a certain date. If the illegal alien does not depart, the order automatically converts to an order of removal.

[3] A “final decision” is one that ends the proceeding at the Immigration Judge level such that the case is no longer pending.

 

 

 

Topic(s):

Immigration

Component(s):

Executive Office for Immigration Review

Press Release Number:

17-889″

 

Yet, the absurdity of something that once purported to be a “court system” dedicated to guaranteeing “fairness and due process for all,” becoming part of the Administration’s border enforcement machine, stomping on the due process rights of those it was supposed to protect, went largely unnoticed in the media.

But, wait a minute, it gets worse! Recently, the widely respected journalist Julia Preston, now writing for the Marshall Project, told us how U.S. Immigration Judges in Charlotte, NC mock due process and fairness for asylum seekers.

http://immigrationcourtside.com/2017/07/31/u-s-immigration-courts-apear-stacked-against-central-american-asylum-applicants-charlotte-nc-approval-rates-far-below-those-elsewhere-in-4th-circuit-is-precedent-being-misapplied/

Now, the Southern Poverty Law Center (“SPLC”) details how, notwithstanding previous complaints, eyewitnesses have documented the attack on fundamental fairness and due process by U.S. Immigration Judges at the DHS Stewart Detention Facility (why would “real judges” be operating out of a DHS Detention Facility?). Here’s a summary of the report from SPLC:

SPLC DEMANDS DEPARTMENT OF JUSTICE TAKE ACTION AGAINST IMMIGRATION JUDGES VIOLATING DETAINEES’ CONSTITUTIONAL RIGHTS

Some judges at the Stewart Immigration Court in Georgia routinely break the rules of professional conduct and continue to violate the constitutional rights of detainees – failures that require action, including the possible removal of one judge from the bench, according to a complaint the SPLC lodged with the U.S. Justice Department’s Executive Office for Immigration Review (EOIR) today.

The complaint, which comes almost a year after the SPLC and Human Rights First notified the agency about the judges, describes how they fail to explain basic legal information to immigrants, or even demonstrate the necessary dignity and courtesy the rules of conduct require.

The complaint notes that after one man told a judge that he had grown up in the United States, the judge said that if he were truly an American, he “should be speaking English, not Spanish.” The findings come after the SPLC spent a month observing the hearings of 436 people.

The federal agency has claimed that it initiated discussions with the judges after the initial complaint was filed in late August 2016, but the SPLC’s courtroom observers and its experience representing detainees continue to uncover issues at the court, which is inside the privately operated Stewart Detention Center in rural Lumpkin, Georgia.

“The people appearing before this court are already being held at the Stewart Detention Center, often far from their family and friends,” said Dan Werner, director of the SPLC’s Southeast Immigrant Freedom Initiative, which represents immigrants detained at Stewart. “They are scared and unsure of their rights when they go before judges whose behavior gives no assurance that they’ll receive a fair hearing. In fact, their behavior makes a mockery of the legal system.”

The SPLC’s courtroom observers found a number of issues, including judges failing to provide interpretation services for the entire court proceeding. They also failed to provide rationales for their decisions, provide written notification about future proceedings to the detainees, or grant routine procedural motions.

The complaint describes how Judge Saundra Arrington stands out for her lack of professionalism and hostility toward immigrant detainees – behavior warranting reprimand, suspension or even removal from the bench, according to the complaint.

Arrington, who goes by the last name Dempsey but is referred to as Arrington in EOIR records, began hearings with one immigrant by prejudicially noting he had a “huge criminal history,” comprised of nine convictions for driving without a license over 15 years. It was Arrington who told a detainee that he should speak English if he grew up in the United States and believed he was American.

She also refused to allow two attorneys appear on behalf of an immigrant, stating that there may be “one lawyer per case” despite attorneys explaining they had filed the necessary paperwork. Two attorneys, however, were allowed to appear on behalf of Immigration and Customs Enforcement Office of Chief Counsel.

Judge Dan Trimble, according to the complaint, denied bond for a detainee without looking at the bond motion. He also rarely refers detainees to the detention center’s “Legal Orientation Program,” which provides information about court proceedings and offers assistance.

“The Department of Justice must take action to stop this behavior that is undermining the legal system,” said Laura Rivera, SPLC staff attorney. “Every day that this behavior is allowed to continue is a day dozens of people have their rights denied.”

The SPLC launched the Southeast Immigrant Freedom Initiative (SIFI) at the detention center earlier this year to provide free legal representation to immigrants who have been detained and are facing deportation proceedings.

A recent national study found that between 2007 and 2012, only 6 percent of detainees at the Stewart Detention Center were represented by counsel – far below the national representation rate of 37 percent, according to the SPLC complaint. Immigrants with counsel are approximately 20 times more likely to succeed in their cases.

Beginning this month, SIFI will expand to other detention centers throughout the Southeast. When fully implemented, it will be the largest detention center-based deportation defense project in the country.

And, here’s a link to the complete shocking report.

eoircomplaintletter

Folks, all of the abuses detailed in this post are being carried out by U.S. government officials at EOIR charged with protecting the due process rights of vulnerable migrants and asylum seekers. In other words, under pressure from the Trump Administration and the Sessions DOJ, some EOIR employees have disregarded their duty to the U.S. Constitution to provide due process for vulnerable migrants in Removal Proceedings. How long will the pathetic mockery of justice masquerading as “judicial proceedings” that is occurring in some (certainly not all) parts of the U.S. Immigration Court system be allowed to continue?

PWS

08-10-17

 

 

 

U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?

https://www.washingtonpost.com/national/migrants-in-surge-fare-worse-in-immigration-court-than-other-groups/2017/07/30/e29eeacc-6e51-11e7-9c15-177740635e83_story.html?utm_term=.5d2ca3c80278

 

Julia Preston of The Marshall Project reports in the Washington Post:

— Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.

From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.

The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Their cases are failing just as President Trump is rapidly expanding deportations.

Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.

Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.

New cohort of fugitives

As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.

The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.

Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.

When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.

In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.

In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.


María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)
‘Don’t stop in Charlotte!’

The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.

María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.

“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”

Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.


A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)

Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.

Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.

For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.

But not in Charlotte. Couch and Judge  — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.

Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.

“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”

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Read Julia’s complete article at the link.

According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. . . . . Social group determinations are made on a case-by-case basis.”

Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)  (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum  seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117  (4th Cir. 2011) (family members).

Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.

This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.

The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.

PWS

07-31-17

 

 

Julia Preston (Retired From The NYT, Now At The Marshall Project) Explains Trump’s Immigration Executive Orders

https://www.themarshallproject.org/2017/02/03/decoding-trump-s-immigration-orders?utm_medium=social&utm_campaign=share-tools&utm_source=facebook&utm_content=post-top#.aYfs86zr3

“The refugee program was not the only part of the immigration system that sustained shocks this week from three executive orders by President Donald Trump. While the White House scrambled to contain the widening furor over his ban on refugees and immigrants from seven Muslim-majority countries, the administration was laying the groundwork for a vast expansion of the nation’s deportation system. How vast? Here’s a close reading of Trump’s orders:”

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Read Julia’s full analysis at the link.

Not to beat a dead horse, but it’s hard to resist. To show what a “parallel universe” executives at the EOIR live in, the article says that without the Trump priorities EOIR believes it could have begun to reduce the backlog with 330 Immigration Judges (they currently have 305, and approximately 370 are authorized). What!!!!

Math wasn’t my strong point, but let’s do some basics here. There are more than 530,000 currently pending cases in the U.S. Immigration Courts. An experienced fully trained, fully productive Immigration Judge (which none of the new Immigration Judges will be for several years, if then) can do a reasonable job on at best 750 cases per year. So, 330 fully trained Immigration Judges might be able to do approximately 250,000 cases per year without stomping on individuals’ due process rights. That’s barely enough to keep up with the normal (pre-Trump Administration) annual filings of new cases, let alone make realistic progress on a one half million backlog.

But, even that would be highly optimistic.  The real minimum number of Immigration Judges needed to keep the system afloat and “guarantee fairness and due process for all,” even without the distorted Trump priorities, is 500 Immigration Judges as determined by the consensus of “outside-EOIR/DOJ management” observers. And, that’s not even considering that many of the best and most experienced Immigration Judges will be retiring over the next few years.

So, even without the Trump Executive Orders, EOIR executives were living in a dream world that had little relationship to what is happening at the “retail level” of the system, in the Immigration Courts. And, because none of the folks who sit in the EOIR HQ “Tower” in Falls Church, well intentioned as they might be, actually hear and decide cases in the Immigration Courts, the gap between reality and bureaucracy at EOIR is simply off the charts!

This system needs help, and it needs it fast! The DOJ and EOIR, as currently structured and operated, simply cannot solve the real problems of one of America’s largest, most important, most under-resourced, and most out off control court systems. Unless the Trump Administration and Congress can “get smart” in a hurry and pull together on legislation to get the Immigration Courts out of the DOJ and into an independent Article I structure, this system is heading for a monumental due process train wreck that could threaten to take the rest of the U.S. justice system along with it.

PWS

02/06/17

 

The U.S. Immigration Court’s Vision Is All About Best Practices, Guaranteeing Fairness, And Due Process — 7th Circuit’s Judge Posner Thinks It’s A “Farce” — Blames Congressional Underfunding!

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2016/12/31/let-39-s-close-out-2016-with-a-posner-dissent-chavarria-reyes-v-lynch.aspx?Redirected=true

“POSNER, Circuit Judge, dissenting. This case involves a typical botch by an immigration judge. No surprise: the Im‐ migration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads. See, e.g., Julia Preston, “Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle,” NY Times, Dec. 1, 2016, www.nytimes.com/2016/12/01/us/deluged‐immigratio n‐courts‐where‐cases‐stall‐for‐years‐begin‐to‐buckle.html?_r =0 (visited Dec. 30, 2016).”

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Go on over to Dan Kowalski on LexisNexis Immigration Community and read the full opinion and Judge P’s full dissent in Chavarria-Reyes v. Lynch.

Also, read Julia Preston’s article in the NY Times, cited by Judge Posner, quoting (and picturing) me here:

http://www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases-stall-for-years-begin-to-buckle.html

PWS

01/02/17