⚖️🗽PROFESSOR JILL FAMILY IN YALE JOURNAL ON REGULATION — Puncturing The Sovereignty Myth — “The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.”

Professor Jill Family
Professor Jill Family
Widener Law Commonwealth
PHOTO: Widener Law

https://www.yalejreg.com/nc/we-have-nothing-to-fear-but-sovereignty-fear-itself/

. . . .

Additionally, the status quo does not guarantee that no one will be present in the United States without permission.  In fact, with the plenary power doctrine in place, there are approximately 10 million individuals living in the United States without permission.  (And most of them crossed the border legally, entering the territory with legal authorization for some period that expired.)  Despite this, the United States continues to exist.  Noncitizens, however, are denied more independent adjudicators under the false idea that by denying them we somehow protect the nation’s sovereignty.  These are complex lives interwoven with our communities, businesses, schools, and the lives of US citizens.  The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.

Perhaps the sovereignty fear is shorthand for something else?  Is it an objection to multiculturalism?  The reflection of a desire to give the president power to thwart statutory immigration law?  Or perhaps courts and policymakers have been invoking the phrase “plenary power” for so long that it has become an out of date, knee-jerk reaction.

Sovereignty and foreign policy will remain intact even with more independent immigration adjudication.  The sovereignty fear is a distraction from what really needs our attention; we should not let it stop us from providing fair process.

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

The threat to our democracy hardly comes from those seeking legal refuge to save their lives or to find meaningful work to support their families and contribute to society.  A more robust and fair legal immigration system would assist in identifying the relatively small percentage of migrants who seek to do us harm. 

No, the bigger threat comes from GOP neo-fascist insurrectionists and their spineless political enablers who actively seek to undermine our democracy with lies and White Nationalist racism. 

In a more functional system, Professor Family and those like her who understand and are committed to the “big picture” of American democracy and equal justice for all would be the Appellate Immigration Judges and Article III Judges — jurists ready and willing to stand up to Executive abuses of authority! The Immigration Courts should be the “starting place” for restoring and reinforcing American democracy. Does the Biden Administration have the vision and guts to make it happen?

🇺🇸Due Process Forever!

PWS

08-06-21

⚖️🗽THE GIBSON REPORT — March 29, 2021 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.

 

USCIS Office Closings and Visitor Policy

 

TOP NEWS

 

The migrant ‘surge’ at the U.S. southern border is actually a predictable pattern.

WaPo: We analyzed monthly U.S. Customs and Border Protection data from 2012 through February and found no clear evidence that the overall increase in border crossings in 2021 can be attributed to Biden administration policies. Rather, the current increase fits a pattern of seasonal changes in undocumented immigration combined with a backlog of demand because of 2020s coronavirus border closure. See also Majority of Migrants at the Border Are Being Turned Away, Biden Says; 9 questions about the humanitarian crisis on the border, answered; Photos Reveal The Crowded Conditions Unaccompanied Immigrant Kids Are Held In At The Border.

 

Harris steps into new immigration mission with Central American leader calls this week

WaPo: Vice President Harris this week will place her first telephone calls to Latin American leaders as she steps up efforts to fulfill her new mission of tackling the root causes of the migrant surge to the United States. See also What Kamala Harris Has Said About Immigration Before Leading White House Border Response.

 

Biden administration fires most Homeland Security Advisory Council members

WaPo: Homeland Security Secretary Alejandro Mayorkas fired most members of the department’s independent advisory council on Friday, a purge that included several allies of former president Donald Trump and veteran officials who served under both parties.

 

Judge Dana Marks On How The Biden Administration Can Address Immigration Backlogs

NPR: NPR’s Steve Inskeep talks to Judge Dana Marks of the National Association of Immigration Judges about the massive backlog facing immigration judges.

 

Dem, GOP Lawmakers Suggest Expelling Migrant Children

Law360: Congress members on both sides of the aisle proposed rapidly expelling unaccompanied migrants at the southern border this week as federal agencies scrambled to accommodate ballooning numbers of minors in their care.

 

Rejected By 1 Mexican Port Of Entry, Migrants Are Flown By U.S. To Another

NPR: Some areas on the border in Mexico are refusing to take the migrants back, so U.S. authorities are flying them to where Mexican officials will accept them.

 

9-Year-Old Migrant Girl Dies Trying to Cross Rio Grande Into U.S.

NYT: Austin L. Skero II, the chief patrol agent for the Border Patrol’s Del Rio sector in South Texas, said that his agents had rescued more than 500 migrants attempting to illegally enter the country since the start of the current fiscal year, which began Oct. 1. A total of 82 migrants have died in that period, according to C.B.P. data.

 

Border Patrol holds migrant families for days under a south Texas bridge

LA Times: Up to 600 families were assembled in recent days at the site under the Anzalduas International Bridge in Mission, Texas, sleeping in the dirt, exposed to the elements, without much food or access to medical care, according to several people who said they were released this week by U.S. Customs and Border Protection.

 

Stephen Miller to launch a new legal group to give Biden fits

Politico: The group, which will be known as America First Legal, will help organize Republican attorneys general against perceived executive branch abuses in addition to filing lawsuits of its own, according to six people familiar with the planning.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Form I-589 NTA Policy

USCIS: If DHS previously issued you an NTA that has not been filed and docketed with EOIR, [USCIS] will accept your Form I-589, issue you an NTA, file your NTA with EOIR, send your Form I-589 to the EOIR immigration court where we file your NTA, and notify you by mail. EOIR will adjudicate your Form I-589. The date USCIS receipted your Form I-589 will serve as the filing date for the purpose of the asylum one-year filing deadline. [Note: This site is dated 1/26/21, but it seems that at least some affirmative I-589s with unfiled NTAs have recently begun being forwarded directly to EOIR and docketed.] See also Final Settlement Agreement in Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications.

 

Feds Back Green Card Limits For TPS Holders At High Court

Law360: The Biden administration told the U.S. Supreme Court that immigrants who crossed the border illegally, but are temporarily shielded from deportation, should not be eligible for permanent residence, tracking similar arguments made by the Trump administration.

 

Matter of AL SABSABI, 28 I&N Dec. 269 (BIA 2021)

BIA: (1)   The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is divisible and the underlying substantive crime is an element of the offense. (2)   Because the substantive offense underlying the respondent’s Federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude, his conviction for conspiring to commit this offense is likewise one for a crime involving moral turpitude.

 

CA1 Says BIA Did Not Err in Finding That Asylum Applicant Failed to Prove His Chinese Citizenship

The court held that the BIA and IJ properly found that the petitioner had failed to prove his Chinese citizenship on the basis of a lack of corroborating evidence, and thus found that he could not base his asylum application on a fear of returning to China. (Thile v. Garland, 3/19/21) AILA Doc. No. 21032435

 

CA5 Says Categorical Approach Applies to Texas Conviction for Possession of Controlled Substance in Penalty Group 2-A

Where petitioner had been convicted in Texas of possessing a controlled substance listed in Penalty Group 2-A, the court held that the government had failed to show that Penalty Group 2-A was divisible, and thus that the categorical approach should apply. (Alejos-Perez v. Garland, 3/22/21) AILA Doc. No. 21032436

 

5th Circ. Upholds Asylum Denial Over Missing Paperwork

Law360: The Fifth Circuit on Wednesday denied a Cameroonian asylum seeker’s attempt to revive his case over missing paperwork, finding that his attorney failed to conduct a thorough enough search before attesting that the paperwork was not actually received.

 

CA8 Finds That Petitioner’s 2006 Federal Conviction for Illegal Reentry Under INA §276 Is Not an Aggravated Felony

The court held that because petitioner’s 2003 Missouri marijuana conviction was not a categorical match to the corresponding federal offense in INA §101(a)(43)(B), his 2006 conviction for illegal reentry was not an aggravated felony under INA §101(a)(43)(O). (Lopez-Chavez v. Garland, 3/22/21) AILA Doc. No. 21032438

 

CA8 Says There Is No “Miscarriage of Justice” Exception to Statutory Prohibition on Reopening a Reinstated Removal Order

The court held that there is no “gross miscarriage of justice” exception to the statutory prohibition on reopening a reinstated removal order, and concluded that the immigration court lacked jurisdiction to reopen the petitioner’s 1998 proceeding. (Gutierrez-Gutierrez v. Garland, 3/22/21) AILA Doc. No. 21032437

 

9th Circ. Judges Spar Over Failed Bid To Rehear Asylum Rule

Law360: The full Ninth Circuit refused Wednesday to review a panel order blocking a Trump-era policy that stripped asylum eligibility from migrants who cross the Southern border outside a port of entry, though six judges dissented, declaring they’re not “Platonic Guardians” of public policy.

 

9th Circ. Clarifies ‘Intellectual Disability’ For Asylum Claims

Law360: The Ninth Circuit on Wednesday sided with a Salvadoran asylum-seeker, finding that the immigration court misconstrued the nature of his intellectual disability by applying layman’s reasoning to a medical question.

 

CA10 Holds That INA §237(a)(1)(C)(i) Does Not Require Failure to Maintain Visa Status to Be Fault of Visa Holder

Denying the petition for review, the court held that the plain meaning of INA §237(a)(1)(C)(i) does not require a failure to maintain nonimmigrant status to be the fault of the nonimmigrant or the result of some affirmative action taken by the nonimmigrant. (Awuku-Asare v. Garland, 3/16/21) AILA Doc. No. 21032439

 

District Court Grants Class Certification and Amends Preliminary Injunction in Unaccompanied Children Litigation

USCIS issued a notice following class certification and entry of an amended preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321

 

Fla. Court Orders ICE To Release Social Distancing Data

Law360: A Florida federal judge on Thursday backed a special master’s call to further review U.S. Immigration and Customs Enforcement’s social distancing measures at three detention centers and ordered the agency to brief the court on how it has cohorted detainees and enforced social distancing.

 

Gillibrand Introduces Bill To Guarantee Access To Counsel For Children During Immigration Removal Proceedings

Gillibrand’s Office: Following the introduction of the FAIR Proceedings Act, Gillibrand also led her Senate colleagues in a letter to U.S. Attorney General Merrick Garland. In the letter, the Senators urge the Department of Justice (DOJ) to review and address the needs of the Immigration Court system to ensure that proceedings are fair, the most vulnerable are protected, and that the independence and authority of immigration judges is fully restored.

 

Dems Eye Yearly 125K Refugee Minimum After Historic Lows

Law360: Democratic members of Congress reintroduced legislation that would bar the White House from setting the annual refugee cap below 125,000, a proposal that comes as current U.S. refugee admissions are set at record-breaking lows.

 

USCIS Extends Flexibility for Responding to Certain Agency Requests

On March 24, 2021, USCIS extended the flexibilities it announced on March 30, 2020, for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and June 30, 2021, inclusive. AILA Doc. No. 20050133

 

DOS Provides Update on Public Charge

DOS announced that it has updated its guidance to consular officers on how to proceed while DOS’s 10/19 IFR and 1/18 FAM guidance are enjoined. Under this guidance, consular officials will apply the public charge standard that had been in effect prior to these changes when adjudicating applications. AILA Doc. No. 20080700

 

EOIR Announces New Privacy Waiver and Records Release Form

EOIR announced the release of Form EOIR-59, Certification and Release of Records, which enables current and former respondents who have or had business before EOIR to request or authorize the disclosure of their information. EOIR will continue to accept Form DOJ-361, Certification of Identity. AILA Doc. No. 21032635

 

Correction to USCIS Notice Designating Venezuela for TPS

USCIS published a correction to its notice designating Venezuela for TPS, which was published at 86 FR 13574 on 3/9/21. USCIS is correcting typographical errors in the Table 1— Mailing Addresses and Table 2— Mailing Addresses sections of the notice. (86 FR 15694, 3/24/21) AILA Doc. No. 21032431

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 29, 2021

Sunday, March 28, 2021

Saturday, March 27, 2021

Friday, March 26, 2021

Thursday, March 25, 2021

Wednesday, March 24, 2021

Tuesday, March 23, 2021

Monday, March 22, 2021

Sunday, March 21, 2021

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

Thanks Liz! And don’t forget that Liz and I will be appearing on a panel on the due process disaster in the U.S. Immigration Courts on April 7, 2021, sponsored by the Hispanic National Bar Association (“HNBA”). We’ll be joining NDPA All-Stars Claudia Cubas (CAIR Coalition), Professor Jill Family (Widener Law), and Ramon Guerra (Law Firm of Ramon S. Guerra) on this panel. Don’t miss it!

https://immigrationcourtside.com/2021/03/29/%f0%9f%a7%91%f0%9f%8f%bd%e2%80%8d%e2%9a%96%ef%b8%8f%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8whos-judge-is-it-anyway-the-crisis-of-independence-in-our-immigration-court/

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

03-30-21

🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

HBNA
HBNA

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

The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!

That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.

That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!

The real questions are:

1) What can we do about it, and

2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?

Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

PWS

03-29-21

 

LEADING ACADEMICS FILE OPPOSITION TO JUDICIAL QUOTAS WITH SESSIONS – The Continuing Saga Of The Due-Process-Killing Move That Nobody But Sessions Wants!

https://commonwealthlaw.widener.edu/files/resources/letter-to-sessions-immigration-adjudication-with-s.pdf

Professor Jill Family

Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

 

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

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August 14, 2018

Honorable Jeff Sessions Attorney General
U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

Dear Attorney General Sessions:

We are scholars and teachers of immigration law and of administrative law. We write to express our alarm about the Department of Justice’s new performance metrics for immigration judges. We believe the Department’s performance metrics are unacceptable and fear they are a part of larger goal to undermine the independence of the immigration courts.

Longstanding problems with immigration adjudication have simmered through both Republican and Democratic administrations.1 These problems have manifested in a tremendous backlog of cases awaiting adjudication: over 700,000 cases.2 The wait for a removal hearing can last years.3 The status quo is not acceptable and actions to reform the system are imperative.

Reforms, however, need to enhance fairness by protecting individual rights. Whether the adjudicating body is the Environmental Protection Agency, the Internal Revenue Service, or the Department of Justice in a removal proceeding, how government power is used against a respondent should be scrutinized. This concern is amplified in immigration law because Congress has eliminated federal court review of some issues. For many, the agency hearing before the Department of Justice is the only opportunity to seek statutory protections.

1 Our comments here focus on the Department of Justice’s proposed performance metrics for immigration judges, but there are other issues facing the immigration adjudication system, including a lack of access to counsel and the many types of diversions used to prevent an individual from reaching immigration court. SeeIngrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1 (2015); Jill E. Family, A Broader View of the Immigration Adjudication Problem, 23 GEO. IMMIGR. L.J. 595 (2009).2 Transactional Records Access Clearinghouse, Backlog of Pending Cases in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.

3 Transactional Records Access Clearinghouse, Average Time Pending Cases Have Been Waiting in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php.

Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, PA 17110
t: 717-541-3911 f: 717-541-3966 e: jefamily@widener.edu w: commonwealthlaw.widener.edu

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The concept of fair process in implementing the rule of law is one of the most fundamental American principles. It is a pillar of meaningful democracy. The idea that the government should not deprive any person4 of life, liberty or property without first providing fair process is enshrined in the U.S. Constitution. The repercussions of a lack of fair procedure can be devastating. While it is incumbent on any federal administration to act efficiently, the adjudication process must be fair.

The fair process calculus demands an adjudicator who does not feel compelled to rule in a certain way due to unacceptable influences. The law itself may of course compel an adjudicator, but the scenario becomes very murky very quickly when an adjudicator has a personal stake in the outcome of a case.

Agency adjudicators are not Article III judges and never have had the full independence of federal court judges. Immigration Judges do not have even the job protections that other agency adjudicators enjoy, however.5 Immigration judges are attorney employees of the Department of Justice.6 The Department of Justice sets the conditions of employment, including location of employment and whether employment continues.7 A Department of Justice regulation, nevertheless, tells immigration judges to “exercise independent judgment and discretion” when making decisions.8 Also, the immigration judge position has evolved over time to make it more independent,9 even if it has not reached the ideal level of independence.10

Congress has tasked you, the Attorney General, with the management of the Department of Justice, including immigration adjudication. It is your duty to insist that fairness and independence are a part of the system. Agency adjudicators are by nature more accountable to the executive branch. But that does not mean that agency adjudicators should be mere vessels who fail to apply statutory standards or who apply the law subject

4 The Due Process Clause is not limited to citizens. U.S. CONST. amends. V, IV.
5 See Kent Barnett, Against Administrative Judges, 49 U.C. DAVIS L. REV. 1643, 1647 (2016).
6 8 C.F.R. § 1003.10(a).
7 See Board of Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified at 8 C.F.R. pt. 3).
8 8 C.F.R. § 1003.10(b).
9 Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453 (1988).
10 There are proposals, for example, to recreate immigration adjudication as an Article I court with greater autonomy from the executive branch. Christine Lockhart Poarch, The FBA’s Proposal to Create a Federal Immigration Court, THE FEDERAL LAWYER (April 2014), available at http://www.fedbar.org/Image- Library/Government-Relations/CH16/Proposed-Article-I-Immigration-Court.aspx; American Bar Association,Reforming the Immigration System (2010) at E9, available athttps://www.americanbar.org/content/dam/aba/migrated/media/nosearch/immigration_reform_executive_s ummary_012510.authcheckdam.pdf; American Immigration Lawyers Association, Resolution on Immigration Court Reform (2018), available at https://www.aila.org/File/DownloadEmbeddedFile/74919. See also Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1640 (2010) (recommending that immigration judges become administrative law judges and be relocated from the Department of Justice to an independent tribunal within the executive branch).

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to unfair influence or a conflict of interest. Independence and a lack of bias help to protect individual rights and to secure public confidence in the integrity of the process.

The Department of Justice should not conflate enforcement with adjudication. Immigration judges are not prosecutors. Immigration adjudication is different than other functions of the Department of Justice. Immigration judges hear cases initiated by the Department of Homeland Security.11 The Department of Homeland Security therefore decides who enters the immigration adjudication system. The Department of Justice is tasked not with enforcement, but rather with carefully evaluating another agency’s claims that an individual should be removed from the United States.12

The Department of Justice must adjust and rapidly respond to the work thrust upon it by the Department of Homeland Security. One tool to help improve the efficiency and operations of the immigration courts would be for the Department of Homeland Security to more carefully assess and vet the cases it chooses to bring forward. We urge you to work with the Department of Homeland Security to improve their procedures rather than expecting all management of enormous dockets to fall on the shoulders of the immigration judges.

Instead of providing adequate resources13 or implementing other case management tactics, the Department of Justice has proposed the case completion quotas. 14 We believe that these quotas show disregard for the importance of independence,15 including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump’s

11 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 12 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf.
12 Congress has charged immigration judges with the duty to adjudicate charges of removal. 8 U.S.C. §1229a.13 The Administrative Conference of the United States has recognized the need for additional resources for immigration adjudication. See Administrative Conference Recommendation 2012-3 at 3, 5, available athttps://www.acus.gov/sites/default/files/documents/2012-3.pdf. We recognize that the Department of Justice has been hiring more immigration judges, but the number of judges has not kept pace with the workload. In 2012, there were 264 immigration judges and now there are approximately 330. Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 6 (2012),available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in- Immigration-Removal-Adjudication-Final-June-72012.pdf; (reporting 264 immigration judges in 2012); U.S. Department of Justice, Office of the Chief Immigration Judge, https://www.justice.gov/eoir/office-of-the- chief-immigration-judge (stating that there are approximately 330 immigration judges).

14 EOIR Performance Plan, available at http://cdn.cnn.com/cnn/2018/images/04/02/immigration-judges- memo.pdf.
15 We implore the Department of Justice to promote independence even outside the context of the quotas. A group of former immigration adjudicators recently objected to the Department’s removal of an immigration judge from a particular case and replacement with a supervisory judge who implemented the administration’s preferred outcome. Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Latest Attack on Judicial Independence, July 30, 2018, available at,https://www.aila.org/infonet/retired-ijs-former-bia-mems-attack-on-jud-independ.

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displeasure with the need for process in immigration cases. In response to a Republican proposal to add 375 immigration judges, he said, “We don’t want judges; we want security on the border.”16 He also characterized the Republican proposal as adding five or six thousand more judges (in actuality the legislation proposed adding 375 judges).17 He said that to add that many judges must involve graft.18 He also has claimed that there is something wrong with foreign nationals having lawyers represent them in immigration proceedings.19

Performance metrics for judges are not inherently objectionable. Careful data collection and analysis can be helpful for training adjudicators and for marshalling court resources. Immigration judges already are subject to qualitative evaluations of their work. These new quantitative performance metrics, however, appear to affect conditions of employment20such as salary and location of employment.21 This is unacceptable. These metrics will diminish independence in immigration adjudication as immigration judges will now have a personal stake in the outcome of cases. Meeting the performance metrics will become a powerful influence over immigration decision-making.

The metrics establish case completion quotas for immigration judges at 700 completions per year. This sets up many immigration judges to fail, or perhaps even worse, encourages immigration judges to cut corners to meet the quota.22 As far as we know, the Department has not introduced a case weighting system. Not every immigration court docket is the

16 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
17 Id; GOP Moves to End Trump’s Family Separation Policy, but Can’t Agree How, N.Y. TIMES, June 19, 2018,available at https://www.nytimes.com/2018/06/19/us/politics/trump-immigration-children-separated- families.html.

18 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
19 Id.

20 We are aware of your congressional testimony stating that an immigration judge would not be fired automatically for failing to meet the quota and that the Department of Justice would consider an explanation why a judge did not meet a quota. Department of Justice FY19 Budget: Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies, 115th Cong., available at https://www.c- span.org/video/?444369-1/attorney-general-sessions-testifies-justice-department-budget#&start=1786(testimony of Attorney General Jeff Sessions at 31:20). The Department, however, has not clarified exactly how these performance metrics would be used, and immigration judges believe that a failure to meet a quota would be used punitively. See Letter from A. Ashley Tabaddor, President, National Association of Immigration Judges, to Hon. Jefferson B. Sessions, May 2, 2018, available athttps://assets.documentcloud.org/documents/4452614/NAIJ-Letter-to-the-AG-5-2-2018.pdf.
21 Location of employment is valuable in a system with immigration courts in major cities and in extremely remote detention centers.
22 Russell Wheeler, Amid Turmoil on the Border, New DOJ Policy Encourages Immigration Judges to Cut Corners, June 18, 2018, available at https://www.brookings.edu/blog/fixgov/2018/06/18/amid-turmoil-on- the-border-new-doj-policy-encourages-immigration-judges-to-cut-corners/.

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same. Deciding 700 claims for asylum is not the same workload as deciding 700 cases where the only issue is whether a foreign national entered the United States without inspection. Asylum cases require careful consideration of evidence about country conditions and an applicant’s experiences in that country. Also, the unique characteristics of a particular judge’s caseload could prevent meeting the case completion goal. Some immigration courts have specialized dockets for vulnerable populations such as those with mental illness or juveniles. Judges assigned to these dockets have additional obligations to ensure minimum standards of fairness.23

The quota motivates judges to come up with coping mechanisms. 24 Efficiencies can come at too great of a cost. For example, what if an immigration judge decides to review paper records and then decide which cases to invite to provide live testimony? If a judge is worried about meeting a quota, a judge might only schedule those matters that could be handled quickly. That would leave more complicated cases to be decided on paper submissions alone.

The quota also sets up an incentive for immigration judges to deny applications for relief. Cancellation of removal provides just one example. By statute, the number of grants of cancellation of removal is limited to 4,000 per year.25 Once the cap is reached, immigration judges may delay a grant to the following fiscal year. If deferring a grant is not considered a completion, then the incentive is to deny the application for relief to earn a completion. This incentive exists even if an immigration judge sincerely believes that the individual is eligible for relief from removal. There are similar issues where the Department of Homeland Security must complete final security checks before a grant of asylum. The immigration judge knows that an asylum case requires multiple steps to complete, but a denial of a case shortens the completion time. Should the judge erroneously deny relief to maintain his or her conditions of employment?

In addition to the case completion quotas, the Department’s proposal calls for certain types of cases to be decided within a certain number of days. This further erodes an immigration judge’s independence to decide what cases need more attention or to allow a continuance to ensure fairness. For example, the plan calls for 95% of all individual merits hearings to take place on the originally scheduled date. The problem here is that there are many forces

23 The federal courts impose obligations on individual immigration judges. For example, in a recent decision on whether a juvenile must be appointed counsel, the Ninth Circuit held that the detailed questioning by the immigration judge was an adequate substitute for appointed counsel. C.J.L.G. v. Sessions, 880 F.3d 1122, 1137-42 (9th Cir. 2018) (noting the obligations of the immigration judge to develop the record). While many of us disagree with the lack of appointed counsel for indigent children, it is clear that federal courts mandate an active and inquisitorial role of immigration judges that requires time and patience.

24 Your own recent decision in Matter of Castro-Tum eliminated a docket management tool known as administrative closure. Now immigration judges must keep these cases active and open on their dockets. 27 I&N Dec. 271 (2018), available at https://www.justice.gov/eoir/page/file/1064086/download.
25 8 U.S.C. § 1229b(e).

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at work that lead immigration judges to issue continuances. Because there is no right to government funded counsel in removal proceedings, foreign nationals may ask for a continuance to find a lawyer, or a newly hired lawyer may need time to prepare. Also, witnesses may not be available on a particular date, or testimony may run long, and the hearing may need to be continued to another day. The 95% goal encourages immigration judges to hold hearings without lawyers even when the foreign national desires one and provides incentive for immigration judges to cut hearings short. Moreover, a study conducted on behalf of the Administrative Conference of the United States revealed a significant percentage of the delays in cases were made at the request of the Department of Homeland Security, not the respondent.26 If the Department of Homeland Security is not ready to proceed and the immigration judge rushes to completion, the government may have to file more appeals. That would simply create more work somewhere else.

As we noted above, the priorities of the Department of Homeland Security directly and at times dramatically impact the work of the immigration courts. The case completion quotas have arrived at the same time that President Trump’s administration has changed its prosecutorial discretion policies to make more foreign nationals priorities for removal.27The administration has announced its plans to open more actions in immigration court.28

Also, the Department of Justice has announced that it is reviewing the Legal Orientation Program, which provides information about the removal process to immigration detainees in a group setting.29 This review is taking place despite previous reviews that have found the program to increase the efficiency of the immigration courts and to save the government money.30 Without an adequate increase in resources, putting more individuals in removal proceedings and/or ending the Legal Orientation Program will only magnify the negative effects of the performance metrics.

26 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 73 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf (reporting that 11% of delays were because a Department of Homeland Security attorney was not ready to proceed and that 14% were because the Department of Homeland Security was missing a file).

27 Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available athttps://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united- states/.
28 See, e.g., US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), available at,https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1- Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.
29 Sessions Backtracks on Pausing Legal Aid Program for Immigrants Facing Deportation, WASH. POST. (April 25, 2018), available at https://www.washingtonpost.com/local/immigration/sessions-backtracks-on-pausing- legal-aid-program-for-immigrants/2018/04/25/c0d27a12-48cb-11e8-827e-190efaf1f1ee_story.html.
30ICE Praised Legal-aid Program for Immigrants that Justice Dept. Plans to Suspend, WASH. POST. (April 17, 2018), available at https://www.washingtonpost.com/local/immigration/ice-praised-legal-aid-program-for- immigrants-that-justice-dept-plans-to-suspend/2018/04/17/c0b073d4-3f31-11e8-974f- aacd97698cef_story.html?utm_term=.8fa7c90bba02.

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The Department’s performance metrics are a poor fit for the realities of immigration adjudication. Immigration law is extremely harsh and complex, and the consequences of the decisions of immigration judges are weighty. These decisions should not be made too quickly. An immigration judge must apply statutes that rival the tax code in complexity and must ensure the opportunity to be heard to a diverse and often poorly educated pool of respondents. The Supreme Court regularly hears immigration law cases that require it to resolve thorny questions. These Supreme Court opinions often leave many questions unanswered, as the Court only decides issues directly before it. Immigration judges need time to digest new interpretations and to think about how those new interpretations apply in a wide array of factual scenarios. For example, a recent Supreme Court decision holding certain Department of Homeland Security charging documents31 to be ineffective has created motions within the immigration courts to terminate proceedings and to reopen older cases. Finally, immigration judges are deciding cases with grave consequences. If an individual is removed, they may face death upon return to their country of nationality. Or an individual may be separated from children or other close family.

The immigration adjudication system needs more resources. More immigration judges need to be hired to guarantee that we do not sacrifice our cherished American values and our constitutional obligations. We also note that with the hiring of judges it is critical that the agency adequately provide support staff from law clerks to court administration. All immigration judges need more time to work through their cases fairly and efficiently. Immigration judges need to be given independence so that we all have confidence that their decisions are based on their judgment as adjudicators, and not influenced by what the adjudicators think best will guarantee positive conditions of employment.

We appreciate that you want to work to ensure efficiency in immigration adjudication. However, you are also charged with guiding our government to comply with the rule of law and to protect American legal values. Accordingly, we urge you to reconsider the new performance metrics.

Respectfully,
(Institutional affiliations are listed for identification purposes only.)

Jill E. Family
Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

31 Pereira v. Sessions, 138 S.Ct. 2105, 585 U.S. ___ (June 21, 2018).

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Lenni B. Benson Professor of Law New York Law School

Matthew Hirsch
Attorney/Adjunct Professor of Immigration and Nationality Law Delaware Law School, Widener University

Huyen Pham
Professor
Texas A&M University School of Law

Jacqueline Stevens
Professor and Director, Deportation Research Clinic Northwestern University

Anju Gupta
Professor of Law and Director of the Immigrant Rights Clinic Rutgers School of Law

William Brooks
Clinical Professor of Law Touro Law Center

Maria Isabel Medina
Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law

Jennifer Moore
Professor of Law University of New Mexico

Dina Francesca Haynes Professor of Law
New England Law

Nickole Miller
Clinical Teaching Fellow
University of Baltimore School of Law, Immigrant Rights Clinic

Estelle M McKee Clinical Professor Cornell Law School

8

Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)

Marisa Cianciarulo
Professor of Law, Associate Dean for Academic Affairs Chapman University Fowler School of Law

Lucy E. Salyer
Associate Professor
History Department, University of New Hampshire

Deborah M. Weissman
Reef C. Ivey II Distinguished Professor of Law UNC School of Law

Carrie Rosenbaum
Adjunct Professor
Golden Gate University School of Law

Emily Robinson
Co-Director, Loyola Immigrant Justice Clinic Loyola Law School Los Angeles

Fatma Marouf
Professor of Law
Texas A&M School of Law

Karen Musalo Professor U.C. Hastings

Miriam Marton
Assistant Clinical Professor University of Tulsa College of Law

Helena Marissa Montes Co-Director
Loyola Immigrant Justice Clinic

Alan Hyde Distinguished Professor Rutgers Law School

9

Stephen H. Legomsky
John S. Lehmann University Professor Emeritus Washington University School of Law

Erica Schommer
Clinical Associate Professor of Law St. Mary’s University School of Law

Renee C. Redman
Adjunct Professor
University of Connecticut School of Law

Linda Bosniak Distinguished Professor Rutgers Law School

Jonathan Weinberg Professor of Law Wayne State University

Denise Gilman
Clinical Professor
University of Texas School of Law Immigration Clinic

Kayleen R. Hartman Clinical Teaching Fellow Loyola Law School

Lynn Marcus
Director, Immigration Law Clinic
University of Arizona Rogers College of Law

Elizabeth McCormick
Associate Clinical Professor University of Tulsa College of Law

Christopher N. Lasch
Professor of Law
University of Denver Sturm College of Law

John Palmer Tenure-Track Professor Universitat Pompeu Fabra

10

Julie Ann Dahlstrom
Clinical Associate Professor Boston University School of Law

Susan Gzesh
Senior Lecturer University of Chicago

Violeta Chapin
Clinical Professor of Law University of Colorado

Jon Bauer
Clinical Professor of Law
Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law

Rachel E. Rosenbloom
Professor of Law
Northeastern University School of Law

Caitlin Barry
Assistant Professor of Law
Villanova University Charles Widger School of Law

Dr. Richard T. Middleton, IV
Adjunct Professor of Law; Associate Professor of Political Science St. Louis University School of Law; University of Missouri-St. Louis

Anna Welch
Clinical Professor
University of Maine School of Law

Charles Shane Ellison
Director of the Immigrant and Refugee Clinic Special Assistant Professor
Creighton University School of Law

Yolanda Vázquez
Associate Professor of Law
University of Cincinnati College of Law

11

Claire R. Thomas
Director, Asylum Clinic; Adjunct Professor of Law New York Law School

Laura A. Hernandez Professor of Law Baylor Law School

Kate Evans
Associate Professor of Law University of Idaho College of Law

Stella Burch Elias
Professor of Law
University of Iowa College of Law

Rachel Settlage Associate Professor Wayne State Law School

Hiroko Kusuda
Clinic Professor
Loyola New Orleans University

Sabi Ardalan
Assistant Clinical Professor Harvard Law School

Joshua I. Schwartz
E.K. Gubin Professor of Law
The George Washington University Law School

Florence Wagman Roisman
William F. Harvey Professor of Law and Chancellor’s Professor Indiana University Robert H. McKinney School of Law

Richard J. Pierce Jr.
Lyle T. Alverson Professor of Law George Washington University

12

Michael Sharon
Adjunct Professor of Law
Case Western Reserve University School of Law

Susan Rose-Ackerman
Henry R. Luce Professor of Law and Political Science, Emeritus Yale University

Jaya Ramji-Nogales
I. Herman Stern Research Professor Temple Law School

Michael Asimow
Visiting Professor of Law Stanford Law School

Natalie Gomez-Velez
Professor of Law
City University of New York (CUNY) School of Law

Adell Amos
Associate Dean & Clayton R. Hess Professor of Law University of Oregon

Harold J. Krent
Dean & Professor of Law Chicago-Kent College of Law

Aila Hoss
Visiting Assistant Professor
Indiana University McKinney School of Law

Richard Reuben
James Lewis Parks Professor of Law and Journalism University of Missouri School of Law

Morell E. Mullins, Sr. Professor Emeritus
UALR Bowen School of Law

Bernard W. Bell
Professor of Law and Herbert Hannoch Scholar Rutgers Law School

13

Rose Cuison Villazor Professor of Law Rutgers Law School

Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University

Victor Romero
Maureen B. Cavanaugh Distinguished Faculty Scholar Associate Dean for Academic Affairs & Professor of Law Penn State Law (University Park)

David Baluarte
Associate Clinical Professor of Law Washington and Lee University School of Law

Michelle N. Mendez
Adjunct Professor, Immigrant Rights Clinic University of Baltimore School of Law

Jeffrey A. Heller
Adjunct Clinical Professor Emeritus Brooklyn Law School
Seton Hall University School of Law

Susan M. Akram
Clinical Professor and Director, International Human Rights Law Clinic Boston University School of Law

Laila L. Hlass
Professor of Practice
Tulane University School of Law

Joanne Gottesman Clinical Professor of Law Rutgers Law School

Jennifer Lee Koh
Professor of Law
Western State College of Law

14

Geoffrey Hoffman
Director
Univ. of Houston Law Ctr. Immigration Clinic

Ingrid Eagly Professor of Law UCLA School of Law

Jason A. Cade
Associate Professor of Law University of Georgia School of Law

Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in Law Ohio State University

Anna Williams Shavers
Cline Williams Professor of Citizenship Law University of Nebraska College of Law

Stewart Chang
Professor of Law
UNLV Boyd School of Law

Margaret H. Taylor
Professor of Law
Wake Forest University School of Law

Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Columbia Law School

Michael J. Churgin
Raybourne Thompson Centennial Professor in Law The University of Texas at Austin

Kathleen Kim
Professor of Law
Loyola Law School Los Angeles

15

Ming H Chen
Associate Professor
University of Colorado Law School

Anil Kalhan
Professor of Law
Drexel University Kline School of Law

Shruti Rana
Professor
Indiana University Bloomington

Hilary Evans Cameron Instructor
Trinity College

Fernando Colon
Professor
Thurgood Marshall School of Law

Shoba Sivaprasad Wadhia
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law – University Park

Blake Close Nordahl Clinical Professor McGeorge Law School

Kaci Bishop
Clinical Associate Professor of Law
The University of North Carolina School of Law

Craig B. Mousin Adjunct Faculty DePaul University

16

Joel A. Mintz
Professsor of Law Emeritus
C. William Trout Senior Fellow in Public Interest Law Nova Southeastern University College of Law

Raquel E Aldana
Associate Vice Chancellor for Academic Diversity and Professor of Law UC Davis

Lindsay M. Harris
Assistant Professor of Law
Co-Director of Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law

Sheila Hayre
Visiting Associate Professor Quinnipiac University School of Law

Andrew Moore
Associate Professor of Law
University of Detroit Mercy School of Law

Krista Kshatriya Lecturer
UC San Diego

David B. Thronson
Professor of Law
Michigan State University College of Law

Mary Holper
Associate Clinical Professor Boston College Law School

Amelia McGowan
Adjunct Professor
Mississippi College School of Law Immigration Clinic

17

Maryellen Fullerton Professor of Law Brooklyn Law School

Renée M. Landers
Professor of Law and Faculty Director, Health and Biomedical Law Concentration Suffolk University Law School

Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law UC Berkeley

Alexander Vernon
Director, Immigration Law Clinic Detroit Mercy School of Law

Irene Scharf
Professor of Law
University of Massachusetts School of law

Seymour Moskowitz Senior Research Professor Valparaiso Law School

Veronica T. Thronson
Clinical Professor of Law
Michigan State University College of Law

Elissa Steglich
Clinical Professor
University of Texas School of Law

Mariela Olivares
Associate Professor of Law Howard University School of Law

Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law

18

Richard T. Middleton, IV
Associate Professor of Political Science Adjunct Professor of Law
University of Missouri-St. Louis
St. Louis University School of Law

Deborah Gonzalez
Director of the Immigration Clinic Associate Clinical Professor Roger Williams University School of Law

Alizabeth Newman
Int. Dir. Alumni Engagement & Initiatives CUNY School of Law

Juliet Stumpf
Robert E. Jones Professor of Advocacy & Ethics Lewis & Clark Law School

Bijal Shah
Associate Professor of Law
Arizona State University, Sandra Day O’Connor College of Law

Niels W. Frenzen
Sidney M. and Audrey M. Irmas Endowed Clinical Professor of Law Univ. of Southern California, Gould School of Law

Jon Michaels Professor of Law UCLA School of Law

Kit Johnson
Associate Professor of Law
University of Oklahoma College of Law

Nina Rabin
Director, UCLA Immigrant Family Legal Clinic UCLA School of Law

Karen E. Bravo
Professor
IU McKinney School of Law

19

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Not likely to make any difference with Sessions & Co. But, Sessions is rapidly driving an already crippled and demoralized system into collapse. If Congress doesn’t fix it soon, which almost nobody thinks will happen, the Article III Federal Courts will eventually have to sort out (not for the first time  — witness child separation, sanctuary cities, Travel Ban 1&2, violation of stays of removal, DACA termination, etc.) this self-inflicted mess created by the Department of Justice under the last three Administrations and accelerated by Sessions and his White Nationalist agenda.

And, NO, the answer isn’t to blame the victims: the respondents, their courageous, hard-working counsel, and the judges and their dedicated staff. The answer is to hold the “perps,” in this case Sessions and his gang, accountable and place them under strict judicial supervision until Due Process and order are restored to our Immigration Courts.

PWS

08-15-18

 

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

 

Keynote Address by

 

Paul Wickham Schmidt

 

United States Immigration Judge (Retired)

 

LIGHT OF LIBERTY AWARDS

 

Pennsylvania Immigration Resource Center

 

Heritage Hills Golf Resort

 

York, PA

 

JUNE 7, 2016

 

  1. I. INTRODUCTION

 

 

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

 

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

 

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

 

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

 

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

 

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

 

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

 

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

 

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

 

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

 

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

 

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

 

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

 

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

 

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

 

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

 

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

 

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

 

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

 

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

 

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

 

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21st Century immigration judiciary.

 

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

 

III. ACTION PLAN

 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

 

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

           

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

           

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

          

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

 

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

 

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

 

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

 

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

           

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

           

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

 

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

 

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

 

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

 

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

 

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

            Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

 

(06-08-17)

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Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

 

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

 

 

 

 

 

 

 

SANCTUARY: MD AG Issues Guidance On Cooperation With ICE!

Here is the guidance memorandum published by MD Attorney General Brian Frosh on state and local cooperation with ICE:

http://www.marylandattorneygeneral.gov/Reports/Immigration_Law_Guidance.pdf

 

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Many thanks to Dan Kowalski at LexisNexis and Professor Elizabeth Keyes at the University of Baltimore School of Law for bringing this to my attention.

PWS

05-16-17

 

Professor Jill Family: “Disrupting Immigration Sovereignty”

http://yalejreg.com/nc/disrupting-immigration-sovereignty-by-jill-e-family/

From Yale Law’s “Notice & Comment:”

“This plenary power narrative stifles our ability to think rationally about immigration law policy and to build consensus. The narrative should not be that of a zero-sum game. The choice is not between absolute, unchecked authority and no government power over immigration. There is middle ground. The plenary power doctrine has been weakened over the last 128 years, and many immigrants are subject to constitutional protection today. In terms of facts, immigration is not inherently a threat. Immigration has done wonderful things for our country and immigrants have contributed in a variety of important ways.

We need a new immigration narrative that more accurately reflects law and fact. This narrative acknowledges that there is space for both government interests and individual rights in immigration law. To make progress, we need to disrupt the mindset that does not allow immigration and security to comfortably occupy the same space. It is possible to be secure and to welcome immigrants while promoting individual rights. This new narrative promotes the idea that the sovereignty of the United States incorporates our exceptional dedication to individual rights. It recognizes that allowing for powers not supervised by the Constitution is its own threat to our sovereignty.

The new narrative recognizes that both individual rights and government interests are important in immigration law. The government has an important role to play in fashioning immigration law policy for the country. Security is an important consideration. But so is protecting individual rights. Preserving the United States includes uplifting its most fundamental values, including the principle that absolute government power is not desirable. Allowing for individual rights to be considered in immigration law does not weaken sovereignty; it strengthens our sovereignty by helping to define who we are. It also sends even unsuccessful immigrants home with an experience to relay that reflects American values.”

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The Administration neither satisfactorily justified nor specifically explained the need for the “Travel Ban Executive Order.” The Obama Administration thoroughly vetted refugees. I have no doubt that they also carefully vetted visa applicants from all countries in the Middle East, North Africa, or any country in the world where terrorist movements are known to flourish. That’s probably why there were no known deaths from terrorist attacks by refugees in the U.S. for the past eight years.

There is no actual emergency to explain the type of “extraordinary measures” the Administration wants to put in place. That’s why most Federal Courts have been skeptical of the Administration’s motives.

The controversial Executive Order is also unnecessary. To date, no court has questioned the President’s authority to reduce FY 2017 refugee admissions to 50,000 (although arguably changes in the number of refugee admissions, either increases or decreases, should have been accompanied by statutory advance  “consultation” with Congress, and it certainly would be possible to question the wisdom, necessity, and humanity of such a reduction). According to some sources, those reduced refugee admission numbers will soon be exhausted, perhaps as early as March.

Consequently, unless the President takes action to raise the number again, the refugee admission program will effectively be “suspended” until the beginning of the next fiscal year, Oct. 1, 2017, without any further action on the Administration’s part.

Additionally, the Administration has never explained exactly what type of additional “vetting” they would add to that already in place. There is certainly nothing stopping Secretary of State Tillerson from improving visa screening in any way that he deems necessary, provided that the “improvements” are not just a ruse for discrimination. Additional questioning of refugees both abroad and at the border hardly requires an Executive Order. As long as the inquiry legitimately aims at discovering possible grounds of inadmissibility, it’s well within the existing authority of the Secretary of State and the Secretary of Homeland Security.

The use of questionable terms like “extreme vetting” and singling out particular Muslim majority countries for a complete ban is unnecessarily inflammatory. It antagonizes the Muslim world (without making us any safer), while sending a highly inappropriate message about the Muslim religion to the American public, thereby encouraging hate, discrimination, and separation.

While the majority of Americans appear wise enough to emphatically reject the Administration’s false message, there is a significant minority who have adopted or been convinced by the Administration’s largely “fact free” attack on refugees and the Muslim religion.

We as a nation could well be in for some difficult times over the next four years. To persevere and prosper, the vast majority of Americans will need to pull together toward common goals. The Administration could help achieve that end by ditching the unnecessary and inappropriately divisive rhetoric about refugees, Muslims, and immigrants.

PWS

02/19/17

 

 

 

Jill Family: Due Process On The Run

http://yalejreg.com/nc/draining-due-process-by-jill-e-family/

Professor Jill Family of Widener University Law writes in “Notice & Comment:”

“As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.”

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I couldn’t agree more with Professor Family. I lived through lots of “haste makes waste” disasters in my Government career. Both Nolan Rappaport and I have pointed out, in our different ways, why it would be smart for the Trump Administration to do an “honest fix” for the Immigration Court system. A “level playing field” that concentrates on full due process in the Immigration Courts benefits everyone, including those who favor vigorous (yet fundamentally fair) immigration law enforcement.

But, sadly, after one week, this has all of the hallmarks of an Administration that will not be able to rise above its own intentionally divisive campaign rhetoric and its unfortunate biases. Just to be clear, as the events of the first week show, those biases have nothing whatsoever to do with the best interests or security of our country and everything to do with pandering to misguided nationalist/populist sentiment.

I suspect that eventually the entire Immigration Court System as well as the DHS “Administrative Removal Process” will end up in “receivership” in the Article III Courts, who will have to decide what to do with a supposed due process system that has been “drained” of both common sense and due process. But, given the failures of the last two Administrations to foster due process in the Immigration Courts, the apparent intention of the Trump Administration to mock established concepts of fairness and due process, and the failure Congress to act on long overdue reforms to establish an Immigration Court independent from the Executive, that might be the best thing for America.

PWS

01/29/17