NBC 4 DC: White Supremacists Target AILA National HQ in Downtown DC!

http://www.nbcwashington.com/news/local/Men-Hang-Anti-Dreamer-Banner-Outside-Immigration-Law-Office-451009963.html

Derrick Ward reports:

“Two members of a white supremacist group hung a banner decrying the “Dreamer” movement outside the American Immigration Lawyers Association office in D.C. Saturday.

Surveillance video shows two men hanging a large banner outside the office on G Street NW in broad daylight.

“They stood in the windowsills and they put a sign up over the doorway,” said Kenneth Thomas, who witnessed the men hanging the banner.

The sign read, “We Are Your Dreamers No Amnesty Identity Evropa.”

Identity Evropa is a white supremacist group “focused on the preservation of ‘white American culture’ and promoting white European identity,” according to the Anti Defamation League.

“There was a gentleman across the street who hollered at them who said, you know, ‘Nazi, nazi, fascist’ whatever,” Thomas said.

The two men then ran away.

News4 spoke with the witness who yelled at the men by phone. He did not want to be identified but said the incident shocked and angered him.

“It’s a scary time right now. I think that they might have the expectation that they’re not going to face any consequences,” he told News4.

D.C. police are investigating the incident as a possible hate crime.

Ben Johnson, the executive director of the American Immigration Lawyers Association, said the organization is saddened but undeterred by the banner.

“It’s important work that’s, you know, the constitution commands us to do and we’re not gonna give up on doing that. We’ve got a long, proud history as a nation of immigrants and we’re proud to be part of that,” Johnson said.

“Dreamers” refers to the hundreds of thousands of young immigrants who had been given a deportation reprieve under former President Barack Obama’s Deferred Action for Childhood Arrivals, also known as DACA.

President Trump ended the program in September and has told lawmakers his hardline immigration priorities, including the wall, must be approved if he is to go along with protecting the young immigrants from deportation.

Source: White Supremacist Group Hangs Anti-Dreamer Banner Outside DC Immigration Law Office – NBC4 Washington http://www.nbcwashington.com/news/local/Men-Hang-Anti-Dreamer-Banner-Outside-Immigration-Law-Office-451009963.html#ixzz4vd7bMjh3
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook”

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Perhaps these guys were expecting Ol’ “Gonzo Apocalypto” to invite them up to the Department of Justice favor an award ceremony!

PWS

10-15-17

 

AP: AILA TAKES ISSUE WITH SESSIONS’S UNSUPPORTED CLAIM THAT UNACCOMPANIED MINORS ARE “WOLVES IN SHEEP CLOTHING!”

https://www.boston.com/news/local-news/2017/09/21/heres-what-jeff-sessions-had-to-say-in-boston

Alanna Durkin Richer Reports for AP:

“Sessions, a Republican, said gangs are exploiting a program for unaccompanied minors found crossing the southern border by sending members over as ‘‘wolves in sheep clothing’’ and recruiting in communities.

Gregory Chen, director of government relations for the American Immigration Lawyers Association, called that assertion ‘‘truly baseless.’’ The program aids children fleeing violence in their home countries, he said.

‘‘He’s trying to inflame public opinion against this highly vulnerable population,’’ Chen said.

A few dozen protesters carrying signs with phrases such as #NotWelcome gathered outside the courthouse before Sessions’ speech to condemn his views on immigration and law enforcement.”

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Read the full report of Sessions’s speech to law enforcement officials in Boston at the link.

Sessions is well-known for his alarmist, inflammatory rhetoric on immigration and his “fact-challenged” claims. While undoubtedly some gang members do come into the United States as so-called “unaccompanied minors,” I have seen no hard evidence on the extent of this problem.

PWS

09-21-17

 

PROFESSOR STEVE YALE-LOEHR’S MOVING TRIBUTE TO JUAN OSUNA: “A LIFE WELL-LIVED BUT CUT TOO SHORT!”

Juan Osuna: A Life Well-Lived But Cut Too Short

AILA Doc. No. 17082230 | Dated August 22, 2017
By Stephen Yale-Loehr*

Death felled a giant of immigration law and policy last week when Juan P. Osuna, age 54, died unexpectedly of an apparent heart attack. Juan worked for seventeen years as a senior immigration legal advisor in the Justice Department for both Democratic and Republican administrations. Juan had recently resigned as director of the Justice Department’s Executive Office for Immigration Review and was contemplating the next chapter of his remarkable life when he passed away.

Juan was an immigrant from Colombia, and his career is an immigrant success story. I hired Juan in 1988 while he was a law student to summarize federal immigration decisions for Interpreter Releases, a weekly immigration newsletter. When Juan graduated he joined the Interpreter Releases staff as assistant editor. After I left DC to practice immigration law and teach at Cornell, Juan became managing editor. We both worked with the legendary Maury Roberts, former chair of the Board of Immigration Appeals (BIA).

Juan’s government service began in 2000 as a BIA member. He rose rapidly through the ranks at the Justice Department, serving at various times as BIA board chair, Deputy Assistant Attorney General, and Associate Deputy Attorney General in charge of immigration policy and other issues. He was a frequent public speaker and testified several times before Congress about the immigration court system.

Read Steve’s full tribute at this link:

http://aila.org/about/announcements/in-memoriam/juan-osuna-a-life-well-lived-but-cut-too-short

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PWS

08-23-17

Continue reading PROFESSOR STEVE YALE-LOEHR’S MOVING TRIBUTE TO JUAN OSUNA: “A LIFE WELL-LIVED BUT CUT TOO SHORT!”

FLASH: AILA WITHDRAWS SUPPORT FOR MORE U.S. IMMIGRATION JUDGES & EOIR FUNDING! — UNDER TRUMP/SESSIONS REGIME “increased judges will not necessarily promote due process and fairness for those appearing in proceedings!”

“From: Greg Chen [mailto:GChen@aila.org]
Sent: Wednesday, July 05, 2017 10:06 AM
To: AILA Interior Enforcement List
Cc: AILA Interior Enforcement List; Kate Voigt; Laura Lynch; Kerri Talbot
Subject: [interiorenforcement] AILA shifted position on IJ funding – CJS approps

Everyone,

AILA’s board just voted to change our position on the funding of immigration judges: in brief, AILA will no longer be supporting increased funding for IJs.  The change in position was motivated by two principal concerns: 1) additional funding for judges will enable this administration to deport more people more rapidly; and 2) increased judges will not necessarily promote due process and fairness for those appearing in proceedings, esp under the current administration.

We will convey this to key friends on the Hill, but we haven’t decided how actively we plan to push this.

Here’s what the House FY18 CJS bill includes, according to the summary posted by House approps:

Executive Office for Immigration Review (EOIR) – Funding for the EOIR is increased by $64.5 million, for a total of $505 million. This increase will provide for 65 additional immigration judge teams to process immigration reviews more quickly, and reduce the backlog of pending cases.

Gregory Z. Chen, Esq.
Director of Government Relations
Direct: 202-507-7615 I Cell: 202.716-5818 I Email: gchen@aila.org American Immigration Lawyers Association
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org<http://www.aila.org/>
1331 G Street, NW, Suite 300, Washington, DC 20005″

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I can understand the sentiment that brought this about. I’m not sure, however, that this isn’t an exercise in “kicking the cat.” The real problem here is lack of independence and the highly inappropriate, facially unethical, role of the DOJ, which Congress created, allowed to fester, and failed to date to fix. And the type of misguided GOP agenda behind an atrocity like H.R. 391 also doesn’t help.

Interesting that the last several Administrations have mismanaged the Immigration Courts to the point where they appear to be doing exactly the opposite of their single mission: guaranteeing fairness and due process for all!

With this particular Congress and Administration, AILA’s change in position probably won’t mean much. Only White Nationalist and restrictionist groups seem to have any influence.

Sadly, years of hard-won progress in establishing due process in the Immigration Court system have now been squandered. EOIR and the Immigration Courts have returned to the mess that they were before EOIR was created.

Bad time to be seeking justice in America! Thanks to my former Georgetown Law Refugee Law & Policy student Shaw Drake for sending me this item!

PWS

07-27-17

 

 

 

FALLOUT FROM TEXAS SB4: AILA Moves 2018 Annual Conference (3,000 Attendees) Out Of “Unwelcoming” State! — Other Groups Likely To Follow Suit! SB 4 Could Cost Texas Businesses Millions In Lost Revenues!

http://www.aila.org/advo-media/press-releases/2017/sb-4-makes-texas-unwelcoming-for-annual-conference??utm_source=aila.org&utm_medium=Carousel%20-%20P

SB 4 Makes Texas Unwelcoming for AILA Annual Conference in 2018

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC – The Board of Governors of the American Immigration Lawyers Association (AILA) has voted to move the Association’s 2018 annual conference from Grapevine, Texas, to another state. The AILA Annual Conference takes place over the course of three and a half days and is the largest yearly gathering of immigration lawyers and legal professionals in the United States.

AILA President William Stock explained, “It is no small matter to cancel the venue for a professional conference with more than 3,000 attendees. In the end, our Board decided it could not ask AILA members, and in many cases their families, to attend a conference in the state which has passed SB-4 into law. SB-4 serves no legitimate purpose and undermines our country’s principles of fairness, due process, and equal treatment under the law. By championing this bill and signing it into law, Governor Abbott has continued the scapegoating of immigrants and the communities that welcome them, rather than acknowledging the immense benefits that immigrants bring to our nation and the shared prosperity which follows.”

AILA Executive Director Ben Johnson added, “I am very proud to serve an organization and a community that is willing to stand up for its values and mission. For more than 70 years, AILA’s mission has been to promote justice and to advocate for fair and reasonable immigration law and policy. That’s not something to which we simply pay lip service, it’s what we and our 15,000 members do, day in and day out. SB-4 is unjust, unfair, and unreasonable and under these extraordinary circumstances, AILA has made the decision that it cannot bring its premier event to the state of Texas.”

###

 

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Cite as AILA Doc. No. 17060700.

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At some point, Texas voters are going to have to ask themselves what price they are willing to pay to promote the “Gonzo-Apocalypto Restrictionist White Nationalist” Agenda being pushed by Abbott and the GOP. Sounds like something Democrats could “work with” at all levels. Economic issues often are a way to get traction. And, the lost business revenues doen’t even to begin to figure in all the money taxpayers are going to have to lay out to defend the inevitable lawsuits.

PWS

06-12-17

ICE Gets Jollies By Busting More Non-Criminals, Adding to Immigration Court Backlogs!

https://www.washingtonpost.com/local/immigration-arrests-up-during-trump/2017/05/17/74399a04-3b12-11e7-9e48-c4f199710b69_story.html

Maria Sacchetti reports in the Washington Post:

“Federal immigration agents are arresting more than 400 immigrants a day, a sharp leap from last year that reflects one of President Trump’s most far-reaching campaign promises.

In Trump’s first 100 days in office, U.S. Immigration and Customs Enforcement arrested 41,318 immigrants, up 37.6 percent over the same period last year, the agency said Wednesday. Almost 3 out of 4 of those arrested have criminal records, including gang members and fugitives wanted for murder. But the biggest increase by far is among immigrants with no criminal records.

“This administration is fully implementing its mass-deportation agenda,” said Gregory Chen, government relations director for the American Immigration Lawyers Association. “They’re going after people who have lived here for a long time.”

. . . .

Acting ICE director Thomas Homan said the statistics released Wednesday show that agents still prioritize lawbreakers: 30,473 criminals were arrested from Jan. 22 to April 29, an 18 percent increase from the same period in 2016.

Meanwhile, arrests of immigrants with no criminal records more than doubled to nearly 11,000, the fastest-growing category by far.

“Will the number of noncriminal arrests and removals increase this year? Absolutely,” Homan said. “That’s enforcing the laws that are on the books.”

What is less clear is what is happening to the immigrants who are being taken into custody.

Overall, deportations have fallen about 12 percent this year, to about 56,315 people, which Homan attributed to a severe backlog in federal immigration courts. He also said it can take longer to deport criminals than those without criminal records, because those in the former category may have additional court proceedings. The Trump administration has called for additional immigration judges and detention space to speed deportations.

Homan did not say how many of the 41,318 people whose arrests were announced Wednesday have been deported, remain in custody or have been released.

Unlike criminal arrests, records of immigration arrests — which are considered civil violations — are not publicly accessible.

The secrecy allows immigration officials to pick and choose which examples of their work to highlight. On Wednesday, they said the immigrants arrested since Trump’s executive order include Estivan Rafael Marques Velasquez, an alleged MS-13 gang member from El Salvador captured in New York in February; Juan Antonio Melchor Molina, a fugitive wanted for a 2008 murder in Mexico who was arrested last month in Dallas; and William Magana-Contreras, another reputed MS-13 member arrested in Houston last month. Magana-Contreras is wanted for aggravated homicide in El Salvador, officials said.

Some advocates questioned whether ICE is truly prioritizing the most serious criminals.

Parastoo Zahedi, an immigration lawyer in Virginia, said ICE is actively trying to deport one of her clients to Italy because of a conviction for possession of a small amount of marijuana. He has lived in the United States nearly all his life.

“It’s not criminal aliens,” Zahedi said. “It’s anyone that they can catch.”

Ava Benach, a D.C. immigration lawyer, said ICE agents are “empowered, emboldened and . . . eager to enforce the law aggressively.”

Advocates also questioned the wisdom of arresting thousands more immigrants — especially those who pose no known public safety threat — when immigration courts are severely backlogged. But Homan said that is the agency’s job.

. . . .

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Let’s put this in plain language.  We have a law that doesn’t work, and a system that is broken. There are an estimated 11 million undocumented individuals residing in the U.S. Most of them work, pay taxes (in some form), and contribute to the economy. Many have immediate relatives who are US citizens or otherwise in the country legally.

Because everyone can’t possibly be removed, the “unfocused” enforcement advocated by Homan on behalf of the Trump Administration turns out to be highly if not completely arbitrary. In most cases of those without serious criminal records, removal would be a net loss to our country.

Moreover, the Administration has reassigned U.S. Immigration Judges away from their regular dockets to work on detained cases, which, understandably, are the highest priority. By mindlessly “jacking up” the detained docket, the Administration  guarantees that backlogs will continue to build on the “non-detained” dockets.

The Immigration Courts now have a backlog approaching 600,000, and it continues to grow by leaps and bounds even though there are more Immigration Judges on duty now than in past years and productivity has remained constant over the past few years (although Immigration Judges still complete multiples of what other similarly situated Federal Judges do, and far more cases than the
“ideal”). This is because of the “Aimless Docket Reshuffling” — ADR — foisted on the Immigration Courts by the past two Administrations.

While, at the very end of the Obama Administration ICE was making some progress toward smarter, more focused use of enforcement resources, which took into account the finite limits of Immigration Court dockets, the Trump Administration has returned to a policy of random irrational enforcement. They have also limited the discretion of individual ICE Assistant Chief Counsel to exercise discretion to get what should be “low priority” cases off the docket — in other words, to exercise “prosecutorial discretion” — “PD” — as other prosecutors do.

PWS

05-17-17

THE ATLANTIC: Priscilla Alvarez Exposes Nation’s Largest Failing Court System: U.S. Immigration Court — Quoting Me: “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained, . . . .” — No Amount Of Resources Can Overcome Screwed Up Priorities, Political Meddling, & Management Problems Inherent In The Current “Designed To Fail” System — Due Processes Takes A Back Seat!

https://www.theatlantic.com/politics/archive/2017/04/trump-immigration-court-ice/523557/

Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):

“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”

The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.

Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.

The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.

Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”

“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.

All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”

When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”

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Read Priscilla’s full article at the above link.

A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.

However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.

Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”

The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!

PWS

04-21-17

NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.

Arlington Immigration Court Report: New — 10 Judges, No Waiting (Well, At Least The First Part Isn’t “Fake News”)

The local AILA Chapter reports that effective on March 6, 2017, the U.S. Immigration Court in Arlington, Virginia will have ten publicly accessible courtrooms, on two floors “up and running.” Here’s the “lineup:”

2nd floor
Courtroom 1 – Judge Robert P. Owens
Courtroom 2 – Judge Thomas G. Snow
Courtroom 3 – Judge Lawrence O. Burman
Courtroom 4 – Judge J. Traci Hong
Courtroom 5 – Judge Rodger C. Harris
Courtroom 6 – Judge John M. Bryant
Courtroom 7 – Judge Quynh V. Bain
Courtroom 8 – Judge Emmett D. Soper

4th floor
Courtroom 15 – Judge Karen D. Stevens
Courtroom 16 – Judge Roxanne C. Hladylowycz

And, there are plans to open the 3rd floor with six new courtrooms and judges in the near future! Combined with the news that the Immigration Court has been exempted from the hiring freeze by AG Jeff Sessions, http://wp.me/p8eeJm-qP that should bring much-needed relief to the conscientious, hard-working judges of Arlington, the local immigration bar, and the Office of Chief Counsel, and the many individuals with cases pending in Arlington. With at least 30,000 cases by last count, help could not come fast enough!

The only question I have: Will progress be derailed by detailing some or all of the Arlington Judges to the Southern Border as part of the Administration’s new immigration enforcement and detention initiative? Only time will tell. Stay tuned.

But, for now, congrats to the Arlington Immigration Court and to EOIR for a job well done and for making needed progress on the due process front!

PWS

03/05/17

AILA TV: In Less Than 5 Minutes, Superstar Attorney Dree Collopy Tells You Everything You Need To Know About The Revised USCIS Guidance On Credible/Reasonable Fear — Must Watch TV!

Here’s the You-Tube link.

https://www.youtube.com/watch?v=CgVJkysse2Y

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Great job by Dree!

Bottom Line:  Under pressure from the Trump Administration, USCIS is tilting the system against (largely unrepresented) asylum applicants from the Northern Triangle. The only questions are 1) whether the Immigration Courts will follow suit, and 2) if so, whether the Article III Courts will blow or swallow (as they have done so far in the credible/reasonable fear context) the whistle on due process for the most vulnerable.

A good introduction to reality for anyone who believes that conscientious career civil servants will be able to persevere in the face of the Trump Administration’s all-out assault on due process and fundamental fairness.

P

WALTER PINCUS IN THE NEW YORK REVIEW OF BOOKS: The Coming Immigration Court Disaster!

http://www.nybooks.com/daily/2017/03/01/trump-us-immigration-waiting-for-chaos/?utm_medium=email&utm_campaign=NYR Dennett immigration reform Chopin&utm_content=NYR Dennett immigration reform Chopin+CID_c0a3091a06cff6ddbb541b093215f280&utm_source=Newsletter&utm_term=US Immigration Waiting for Chaos

“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.

The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.

But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?

. . . .

For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.

Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”

The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.

The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?

As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.

Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.

Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”

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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”

As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.

Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.

In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.

Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”

No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.

PWS

03/02/17