MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!

https://www.reuters.com/investigates/special-report/usa-immigration-asylum/

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

“They fled danger at home to make a high-stakes bet on U.S. immigration courts

Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.

Filed

OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.

They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.

Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.

Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.

That’s when their fates diverged.

Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.

The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.

Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.

The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.

Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.

Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.

In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.

Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.

Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.

The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.

The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.

About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.

“GROSS DISPARITIES”

Of course, other factors influence outcomes in immigration court.  For example, U.S. government policy is more lenient toward people from some countries, less so for others.

Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.

Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.

The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors.  The longer a judge has been serving, the more likely that judge is to grant asylum.

“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco

The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.

“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.

Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.

Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.

Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.

The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.

The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.

Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)

In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”

Video: High-stakes game of chance in U.S. immigration courts

CRISIS AT THE BORDER

In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.

Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.

Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.

Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.

The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.

Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.

The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.

“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”

The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.

One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.

“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.

“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”

She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.

“NO POLICE HERE”

Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.

Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”

Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”

The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”

Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.

There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.

After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.

Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.

“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”

Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.

Volunteer lawyers helped the women prepare and submit their applications for asylum.

In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.

“ASYLUM FREE ZONES”

Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.

People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.

The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.

The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”

Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.

The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.

In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.

In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.

From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.

The agency does not identify judges who were the subjects of complaints.

Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”

DAY IN COURT

Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.

In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.

Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.

In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.

After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.

Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.

Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness.  As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.

Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”

The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.

Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”

“SOMEONE WANTS TO KILL THEM”

Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”

Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.

Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”

Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.

Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.

In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.

Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.

Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.

“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”

Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.

The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.

Additional reporting by Gustavo Palencia and Kristina Cooke

U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.

More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.

The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.

The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.

Reade Levinson

Heavy Odds

By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.

Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:

http://www.reuters.com/trump-effect/immigration

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Great reporting by Mica and her team!

Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”

It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.

PWS

10-17-17

 

GONZO’S “KANGAROO COURT PLAN” MOCKS CONSTITUTION – “Performance Metrics For Judges” Are Thinly Disguised “Deportation Quotas” for “Assembly Line Injustice” — Last Pretense Of “Fair & Impartial Adjudication” About To Disappear!

https://www.washingtonpost.com/local/immigration/immigration-judges-say-proposed-quotas-from-justice-dept-threaten-independence/2017/10/12/3ed86992-aee1-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.bcee5ec17f24

Maria Sacchetti reports for the Washington Post:

“The Trump administration is taking steps to impose “numeric performance standards” on federal immigration judges, drawing a sharp rebuke from judges who say production quotas or similar measures will threaten judicial independence, as well as their ability to decide life-or-death deportation cases.

The White House says it aims to reduce an “enormous” backlog of 600,000 cases, triple the number in 2009, that cripples its ability to deport immigrants as President Trump mandated in January.

The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.

“That is a huge, huge, huge encroachment on judicial independence,” said Dana Leigh Marks, spokeswoman and former president of the association and a judge for more than 30 years. “It’s trying to turn immigration judges into assembly-line workers.”

The White House tucked its proposal — a six-word statement saying it wants to “establish performance metrics for immigration judges” — into a broader package of immigration reforms it rolled out Sunday night.

But other documents obtained by The Washington Post show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.”

The Justice Department, which runs the courts through the Executive Office for Immigration Review, declined to comment or otherwise provide details about the numeric standards.

The Justice Department has expressed concern about the backlog and discouraged judges from letting cases drag on too long, though it has insisted that they decide the cases fairly and follow due process. On Thursday, Attorney General Jeff Sessions expressed concern that false asylum cases are clogging up the courts.

The judges’ union says its current contract language prevents the government from rating them based on the number of cases they complete or the time it takes to decide them.

But now, they say, the department is trying to rescind that language, and advocates say it could violate a federal regulation that requires judges to “exercise their independent judgment and discretion” when deciding cases.

Advocates and immigration lawyers say imposing numerical expectations on judges unfairly faults them for the massive backlog. Successive administrations have expanded immigration enforcement without giving the courts enough money or judges to decide cases in a timely way, they say. An average case for a non-detained immigrant can drag on for more than two years, though some last much longer.

“Immigration judges should have one goal and that goal should be the fair adjudication of cases,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services and advocacy to immigrants nationwide. “That’s the only metric that should count.”

Immigration lawyers say the proposed standards risk adding to disadvantages immigrants already face in immigration courts. Most defendants do not speak English as their first language if at all, are not entitled to lawyers at the government’s expense, and thousands end up trying to defend themselves.

Often immigrants are jailed and given hearings in remote locations, such as rural Georgia or Upstate New York, which makes it difficult to gather records and witnesses needed to bring a case.

“People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” said Gregory Chen, director of government relations for the American Immigration Lawyers Association, which has 15,000 members.

Traditional federal judges are not subject to quotas.

The rare public dispute between the immigration judges and the Justice Department comes as the Trump administration is demanding a commitment to increased enforcement and other immigration restrictions in exchange for legal status for 690,000 young undocumented immigrants who, until recently, were protected from deportation under an Obama-era program. Sessions announced the end of the program last month, and the young immigrants will start to lose their work permits and other protections in March.

In January, Trump issued a slate of executive orders that sought to crack down on immigration. He revoked President Barack Obama’s limits on enforcement and effectively exposed all 11 million undocumented immigrants in the United States to arrest.

On Sunday, Trump also called for more immigration-enforcement lawyers and more detention beds, which would further increase the caseloads of the courts.

He is also planning to seek congressional funding for an additional 370 immigration judges, which would more than double the current number.

Immigration arrests are up more than 40 percent since Trump took office, and deportation orders are also rising. From Feb. 1 to August 31, judges have issued 88,383 rulings, and in the majority of cases — 69,160 — immigrants were deported or ordered to voluntarily leave the country, a 36 percent increase over the corresponding period in 2016.

The immigration courts have clamored for greater independence from the Justice Department for years and also have sought greater control over their budget. They have long complained about a lack of funding, burnout rates that rival that of prison wardens, and caseloads exceeding 2,000 each. Some judges are scheduling cases into 2022.

On Sunday, Sessions — who appoints the immigration judges and is the court’s highest authority — called the White House’s broad immigration proposals “reasonable.”

“If followed, it will produce an immigration system with integrity and one in which we can take pride,” he said.”

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Will the stunningly xenophobic “Gonzo Apocalypto” get away with his lawless plan to strip migrants of the last vestiges of their already restricted Constitutional rights to due process? Or, will the Article III Courts step in, assert themselves, insist on due process and fair and impartial adjudication in Immigration Court, and throw the already staggering Immigration Court System into complete collapse, thereby stopping the “Removal Railway?”

The showdown is coming. I think the eventual outcome is “too close to call.”  So far, Sessions is well on his way to co-opting the Immigration Court as just another “whistle stop on the Removal Railway!”

The current backlog has multiple causes: 1) failure of Congress and the DOJ to properly fund and staff the U.S. Immigration Courts; 2) poor enforcement strategies by DHS resulting in too many “low priority” cases on the dockets; 3) often politicized, always changing, sometimes conflicting “case priorities and goals” established by DOJ and EOIR; 4) lack of authority for Immigration Judges to control their own dockets; 5) outdated technology resulting in a “paper heavy” system where documents are often misfiled or missing from the record when needed by the Judges;  and 6) “Aimless Docket Reshuffling” caused by moving cases around to fit DHS Enforcement priorities and ill-conceived and poorly planned details of Immigration Judges away from their normal dockets. “Productivity,” which consistently far exceeds the “optimal” 500 completions per Judge annually (currently approximately 770 per Judge) is not one of the primary factors causing the backlog.

Overall, the current backlog is the product of mismanagement of the Immigration Courts by the DOJ spanning multiple Administrations. No wonder the politos at the Sessions DOJ are trying to shift blame to the Immigration Judges, hapless migrants struggling to achieve justice in an “intentionally user unfriendly system,” and stressed out private attorneys, many serving pro bono or for minimal compensation. How would YOU like to be a migrant fighting for your life in a so-called “court system” beholden to Jeff Sessions?

We’re starting to look pretty “Third World.” Sessions and the rest of the “Trump Gang” operate much like corrupt Government officials in “Third World” countries where the rulers control the courts, manipulation of the justice system for political ends is SOP, and claims to aspire to “fairness” ring hollow.

PWS

10-13-17

 

BIA SAYS “NO” TO BATTERED SPOUSE WAIVER FOR THOSE ABUSED BY FOREIGN SPOUSE! — Matter of PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

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Matter of PANGAN-SIS, 27  I&N Dec. 130 (BIA 2017)

BIA HEADNOTE:

An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy all three subclauses of that section, including the requirement that the alien be “a VAWA self-petitioner.”

PANEL: Appellate Immigration Judges Malphrus, Mullane & Creppy

OPINION BY: Judge Mullane

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

Let’s break this down into simple human terms. A Guatemalan woman suffered an extended period of domestic abuse in Guatemala at the hands of her husband. That caused her to flee to the United States and enter without inspection. The woman told the truth to authorities.

Rather than granting her temporary refuge, the U.S. Government sought to remove the woman. The woman was fortunate enough to get a good lawyer who made sophisticated arguments in favor of her remaining. She also was fortunate to have a U.S. Immigration Judge who listened to those arguments and granted her a humanitarian waiver. This waiver allowed her to remain in the United States, but did not give her any permanent status nor did it put her in line for a green card.

The Government (“DHS”) did not want the woman to remain, even  in a more or less “limbo status.” So, they appealed to the BIA.

The BIA agreed with the woman that the waiver statute was ambiguious and therefore the Immigration Judge had plausibly interpreted it in her favor. But, the BIA found that a “better interpretation” would impose additional requirements that woman and those similarly situated could never meet. The BIA noted that Congress was only concerned about domestic violence in the United States that was being used as “leverage” against a foreign national by his or her US citizen or green card holding spouse.

Inferentially, the BIA found that Congress could not possibly have intended to help other victims of domestic violence that occurred outside the United States. That would potentially allow every abused spouse in the world to seek a discretionary waiver that would save them from abuse by granting them limited refuge in the United States.

The BIA sent the case back to the Immigration Judge so that the DHS can continue its efforts to remove her to Guatemala where she will be further abused by her Guatemalan spouse. Her lawyer can help her apply for asylum and withholding of removal based on a prior BIA decision Matter of A-R-C-G- that benefitted victims of domestic violence.

However the DHS is likely to oppose that relief. Otherwise, the DHS would have already offered to settle the case based on A-R-C-G-. That’s what used to happen routinely in my court in Arlington prior to the Trump Administration. The woman is credible and appears to fit squarely within A-R-C-G-.

But, if the Immigration Judge grants relief under A-R-C-G- or the Convention, Against Torture (“CAT”), the DHS probably will appeal again to the BIA. As part of the Administration’s enforcement program, the DHS wants the BIA to help them “send a message” that victims of domestic violence might as well continue to suffer abuse or preferably die (thus solving the problem from a U.S. Immigration Enforcement standpoint) at the hands of their abusers rather than seeking refuge in the United States. Bad things that happen to good people in other countries are just not our problem. America First!

The BIA Appellate Judges work for Jeff Sessions. They understand even better than Immigration Judges in the field that “not getting with the Administration’s Enforcement program” of sending consistently negative messages to asylum seekers could result in their being reassigned to other jobs by Jeff Sessions. Some of those jobs have no real duties (“Hallwalkers”).

Jeff Sessions hates all migrants and particularly Hispanic migrants fleeing from Central America. He hates them almost as much as he hates LGBTQ Americans.

Jeff tells everyone who will listen that all Hispanic migrants and most Hispanic citizens who live among them are criminals, drug dealers, and gang members. Even those who aren’t actually criminals are going to take great jobs that Americans would like to have such as picking lettuce, milking cows, shucking oysters, making beds, washing dishes, climbing up trees, cleaning bathrooms, sweeping floors, removing dangerous and moldy storm damage, taking off and putting on roofs in 120 degree heat, pounding drywall, taking care of other folks’ children, mowing laws, and changing adult diapers for senior cizens who can’t do it themselves.

While the United States might sometimes claim to be a bastion of freedom and humanitarian ideals, that is usually only when lecturing other countries on their failings or touting the superiority of our system over every other system in the world. Nobody should seriously expect the United States to act on those humanitarian ideals, particularly when it comes to helping women and children from the Northern Triangle of Central America.

PWS

10-07-17

 

BRINGING OUR CONSTITUTION BACK TO LIFE — AN IMPORTANT FIRST STEP: “JAYAPAL, SMITH INTRODUCE LEGISLATION TO REFORM IMMIGRATION DETENTION SYSTEM!”

https://www.theindianpanorama.news/unitedstates/jayapal-smith-introduce-legislation-reform-immigration-detention-system/

From Indian Panorama:

“WASHINGTON (TIP): Congressman Adam Smith (WA-09) and Indian American Congresswoman Pramila Jayapal (WA-07) introduced, on Oct 3, the Dignity for Detained Immigrants Act, legislation to reform the systemic problems in immigration detention system. This bill will end the use of private facilities and repeal mandatory detention, while restoring due process, oversight, accountability, and transparency to the immigration detention system.

“The high moral cost of our inhumane immigration detention system is reprehensible. Large, private corporations operating detention centers are profiting off the suffering of men, women and children. We need an overhaul,” said Congresswoman Jayapal. “It’s clear that the Trump administration is dismantling the few protections in place for detained immigrants even as he ramps up enforcement against parents and vulnerable populations. This bill addresses the most egregious problems with our immigration detention system. It’s Congress’ responsibility to step up and pass this bill.”

“We must fix the injustices in our broken immigration detention system,” said Congressman Adam Smith. “As the Trump administration continues to push a misguided and dangerous immigration agenda, we need to ensure fair treatment and due process for immigrants and refugees faced with detention. This legislation will address some of the worst failings of our immigration policy, and restore integrity and humanity to immigration proceedings.”

In addition to repealing mandatory detention, a policy that often results in arbitrary and indefinite detention, the legislation creates a meaningful inspection process at detention facilities to ensure they meet the government’s own standards. The bill requires the Department of Homeland Security (DHS) to establish legally enforceable civil detention standards in line with those adopted by the American Bar Association. With disturbing track records of abuse and neglect, DHS has a responsibility to ensure that facilities are held accountable for the humane treatment of those awaiting immigration proceedings.

Individuals held in immigration detention system are subject to civil law, but are often held in conditions identical to prisons. In many cases, detained people are simply awaiting their day in court. To correct the persistent failures of due process, the legislation requires the government to show probable cause to detain people, and implements a special rule for primary caregivers and vulnerable populations, including pregnant women and people with serious medical and mental health issues.”

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Since these guys are Democrats, their bill is obviously DOA. But, it is important to start “laying down markers” — even symbolic ones — for the future.

As a  former administrative judge who was required to administer and enforce mandatory detention (under DOJ rules, we were not permitted to consider the constitutionality of the mandatory detention statutes and the DHS implementing regulations) for the better part of two decades, I can assure you that it was a totally unnecessary, grossly wasteful, and stunningly unhumane blot on our national conscience and our reputation as a nation that adheres to principles of simple human decency.

There is absolutely no reason why U.S. Imigration Judges cannot determine who needs to be detained as a flight risk or a danger to the community and who doesn’t! But, for that to happen, we also need an independent Article I U.S. Immigration Court not beholden to the Attorney General (particularly one like Jeff “Gonzo Apocalypto” Sessions with a perverse ignorance of Constitutional protections, an overwhelming bias against immigrants, and a record largely devoid of notable acts of human decency.)

Every study conducted during the last Administration, including DHS’s own Advisory Committee, found serious problems and inadequate conditions in private detention and recommended that it be eliminated. Former Attorney General Loretta Lynch actually announced an end to private detention for criminals. Yet, remarkably and unconscionably, the response of the Trump Administration, led by Gonzo Apocalypto, was to double down and expand the use of expensive, inhumane private detention for convicted criminals and for “civil” immigration detainees whose sole “crime” is to seek justice from the courts in America.

Thanks much to Nolan Rappaport for sending this in!

PWS

10-06-17

 

LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?

http://www.latimes.com/opinion/editorials/la-ed-scotus-immigrants-20171005-story.html

“This week the Supreme Court heard arguments in two cases that pose the question of whether noncitizens should be afforded at least some of the due process of law that Americans take for granted. The answer in both cases should be a resounding yes.

On Monday, the justices considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported even if the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague that it could not be enforced in a criminal court. On Tuesday, lawyers for a group of noncitizens detained by immigration authorities asked the court to rule that detainees are entitled to a bond hearing after six months of confinement.

Although the circumstances and legal issues in the two cases differ, the common denominator is the importance of affording due process to noncitizens.

James Garcia Dimaya, who was admitted to the U.S. as a lawful permanent resident at the age of 13, pleaded no contest in 2007 and 2009 to two charges of residential burglary. Concluding that one of the convictions was an “aggravated felony,” the Board of Immigration Appeals agreed with the Homeland Security Department that Dimaya should be deported.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts.
But the U.S. 9th Circuit Court of Appeals overturned that decision. It said the definition of “aggravated felony” in immigration law incorporated a definition of “crime of violence” that was similar to language in a different law the Supreme Court had concluded in 2015 was too vague to be constitutional.

At Monday’s oral argument, Deputy Solicitor General Edwin S. Kneedler said the law at issue in Dimaya’s case didn’t suffer from the same vagueness problem. But even if it did, Kneedler told the court, “immigration is distinctive” and deportation “is not punishment for [a] past offense.” In other words, even if the law was too vague to be used for the purposes of criminal punishment, it could still be used for the purposes of deportation.

This brought a devastating rejoinder from Justice Neil Gorsuch. “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported,” Gorsuch said. He questioned the soundness of the “line that we’ve drawn in the past” between criminal punishment and civil penalties such as deportation.

We agree. If the court decides that the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, he should be entitled to relief. A law that is too vague to justify a criminal sentence shouldn’t be a good enough reason to expel someone from the country.

 

In the case argued Tuesday, a class-action lawsuit, noncitizens detained by immigration authorities asked the court to rule that they should receive bond hearings if their detention lasts for six months. The lead plaintiff is Alejandro Rodriguez, who grew up in Los Angeles as a lawful permanent resident. After Rodriguez was sentenced to five years’ probation on a misdemeanor drug possession conviction, he was detained and targeted for deportation to Mexico, the country he had left as a baby two decades earlier. He remained locked up as his legal battle dragged on for years.

The 9th Circuit ruled not only that detainees were entitled to bond hearings but also that they should be released unless the government could demonstrate by clear and convincing evidence that they were dangerous or a flight risk. But on Tuesday Deputy Solicitor General Malcolm Stewart told the court that detainees “have no such right.” He later said that insofar as foreigners arriving in the U.S. are concerned, the Supreme Court has made it clear that “whatever process Congress chooses to give is due process.”

Yet in recent years the court has recognized not only that noncitizens have constitutional rights but that deportation can be a catastrophic experience. In June, the court overturned the guilty plea of an immigrant from South Korea because his lawyer wrongly told him he wouldn’t be deported as a consequence of a plea bargain.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts. The cases argued this week offer the Supreme Court an opportunity to rectify that injustice.”

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

”Mouthing” due process for migrants is easy; the BIA does it all the time — so does EOIR.  But, actually providing due process for migrants is something totally different. Most courts, and particulately the BIA, routinely sign off on unfair procedures and interpretations that would never be considered “Due Process” in any other context.

I’m “cautiously heartened” by Justice Gorsuch’s apparent realization of the potentially catastrophic real human consequences of removal (often blithely ignored or downplayed by the BIA, Sessions, restrictionists, and Federal Courts) and recognition that the “civil-criminal” distinction is totally bogus — designed to sweep Constitutional violations under the rug — and needs to be eliminated.

As an Immigration Judge, when I was assigned to the “Detained Docket” in Arlington, I had case after case of green card holders who had minor crimes for which they paid fines or got suspended sentences — in other words, hadn’t spent a day in jail — “mandatorily detained” for months, sometimes years, pending resolution of their “civil” immigration cases. In plain language, they were sentenced to indefinite imprisonment but without the protections that a criminal defendant would receive! They, their families, and their employers were incredulous that this could be happening in the United States of America. I simply could not explain it in a way that made sense.

Talk is one thing, action quote another. But, if Justice Gorsuch folllows through on his apparent inclination to make Due Process protections for migrants “a reality” rather than a “false promise,” Constitutional protections will be enhanced for every American! We are no better than how we treat the least among us.

Ultimately, full delivery on the promise of Constitutional Due Process for everyone in America, including migrants, will require the creation of an independent Article I U.S. Immigraton Court. The current “captive system” — unwilling and unable to stand up for true Due Process for migrants — is a facade behind which routine denials of Constitutional Due Process take place. As Americans, we should demand better for the most vulnerable among us.

PWS

10-06-17

THE INTERCEPT: “Internal Emails Show ICE Agents Struggling to Substantiate Trump’s Lies About Immigrants”

https://theintercept.com/2017/10/04/ice-raids-trump-immigration-deportation/

Alice Speri reports:

“AS HUNDREDS OF undocumented immigrants were rounded up across the country last February in the first mass raids of the Trump administration, Immigration and Customs Enforcement officials went out of their way to portray the people they detained as hardened criminals, instructing field offices to highlight the worst cases for the media and attempting to distract attention from the dozens of individuals who were apprehended despite having no criminal background at all.

On February 10, as the raids kicked off, an ICE executive in Washington sent an “URGENT” directive to the agency’s chiefs of staff around the country. “Please put together a white paper covering the three most egregious cases,” for each location, the acting chief of staff of ICE’s Enforcement and Removal Operations wrote in the email. “If a location has only one egregious case — then include an extra egregious case from another city.”

The email indicated the assignment was due that night, but a day later, an agent at ICE’s San Antonio office sent an internal email saying the team had come up short. “I have been pinged by HQ this morning indicating that we failed at this tasking,” the agent wrote.

As the hours passed, the pressure on local agents to come up with something grew more intense. “As soon as you come in, your sole focus today will be compiling three egregious case write-ups,” an assistant field office director at the agency’s Austin Resident Office wrote to that team on February 12, noting that the national and San Antonio offices were growing impatient. “HQ and SNA will ping us in the afternoon for sure.”

Then the agent added that a team of officers had “just picked up a criminal a few minutes ago, so get with him for your first egregious case.”

. . . .

There is no question that there are lives at stake.

While Austin’s comments on the retaliatory nature of the Travis County raids drew fleeting attention to the politicization of federal enforcement operations, Coronilla-Guerrero, the man whose case was under review that day, was eventually deported, despite his wife telling the judge that his life would be at risk in Mexico, from where he had fled because of gang threats.

Last month, armed men dragged Coronilla-Guerrero out of the relatives’ home where he had been staying in the state of Guanajuato, while he was asleep with one of his children. His body was found on the street the next morning.“

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

Read the complete article, with copies of internal memos, at the link.

Hardly surprising that the Administration’s “Migrant Menace” narrative is bogus. Also, not surprising that under Trump agents are being required to basically fabricate support for the false narratives. Someday, probably long after I’m gone, all the records of this Administration will become public. I predict that they will show that the fraud, waste, and abuse documented here is just the “tip of the iceberg” of monumental dishonesty of this Administration on the subject of immigration.

I wouldn’t be at all surprised if the recent DOJ/EOIR  claims that statistics support the effectiveness of the “Judge Surge” involves this type of manipulation of evidence to document a pre-determined conclusion demanded  by Trump Politicos and intended to disguise the truth.

PWS

10-04-17

 

DEAN KEVIN JOHNSON SUMMARIZES ORAL ARGUMENT IN JENNINGS V. RODRIGUEZ FOR SCOTUS BLOG – Is There Some Hope For Constitutional Limits On “Gonzo” Immigration Enforcement & Mindless Imprisonment? — It’s A Nice Thought, But Too Early To Tell!

http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/

Dean Johnson writes:

Kevin Johnson Immigration

Posted Wed, October 4th, 2017 12:44 pm

“Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants

Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government’s claim that indefinite detention of immigrants is constitutional.

Deputy Solicitor General Malcom Stewart began for the United States by “stress[ing] the breadth of Congress’s constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States.” Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents’ claim as seeking “a constitutional right to be released into this country” during the pendency of their removal proceedings.

Justice Ruth Bader Ginsburg quickly took a poke at the government’s case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: “[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?”

Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for “aliens arriving at our shores … , whatever Congress chooses to give is due process.” Sotomayor’s incredulous response was blunt: “[T]hat’s lawlessness.”

Rejecting Stewart’s claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that “there is something in between,” and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.

Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to “triple ax murderers.” Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.

Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border “have no constitutional rights at all.” Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.

After getting Stewart to agree that “detention violates due process, if there is an unreasonable delay in that detention,” Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart’s admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.

A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government’s supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it “sounds close to a concession.”

Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.

Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government’s power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit’s requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.

Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.

Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts’ jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.

Returning to Ginsburg’s earlier question about the 9th Circuit’s requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that “this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months.” Alito pushed back, asking, “Where does it say six months in the Constitution? Why is it six? Why isn’t it seven? Why isn’t it five? Why isn’t it eight?”

Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.

Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.

Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.

As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.

Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.

Posted in Jennings v. Rodriguez, Featured, Merits Cases

Recommended Citation: Kevin Johnson, Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants, SCOTUSblog (Oct. 4, 2017, 12:44 PM), http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/”

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We can only hope. As I’ve pointed out before, coercive detention and the building of the “American Gulag” are key parts of the Trump-Sessions-DHS “Gonzo” Immigration Enforcement Plan. I still don’t think the Supremes fully understand just how inhumane and coercive immigration detention is and how it’s used to “squeeze” the life out of a detainee’s due process rights. And, it starts with making it difficult or impossible to get a lawyer of your own choosing. You actually have to see what happens in a DHS Detention Center (many of them private, for profit enterprises, looking to minimize care, maximize profits, and keep the beds filled) to fully grasp what a mockery the detention process and the location of “Detained Courts” in Detention Centers or in far-distant Televideo Courtrooms makes of our system of justice, the U.S. Immigration Courts, and our promise of Constitutional rights.

PWS

10-04-17

BREAKING: TAL KOPAN AT CNN: REBUTTAL — DOJ/EOIR CLAIM (WITHOUT MANY SPECIFICS) THAT “SURGE’ OF DETAILED JUDGES TO S. BORDER INCREASED OVERALL PRODUCTIVITY BY 2,700!

http://www.cnn.com/2017/10/04/politics/immigration-courts-judges/index.html

Tal reports:

“Washington (CNN)Sending immigration judges to the border has resulted in thousands of more cases being handled, the Justice Department announced Wednesday, though a substantial backlog in the immigration courts remain.

The Justice Department released new statistics on Wednesday touting the effects of reassigning more than 100 immigration judges to the southern border, saying it has resulted in 2,700 more cases being completed than would have otherwise.
The Executive Office for Immigration Review, which manages the Justice Department’s immigration court system, estimated that the judges moved to the border completed significantly more cases than if they had remained at home, and completed 21% more cases than judges historically assigned to those areas as their home courts.
Still, the 2,700-case-increase remains a drop in the bucket compared to the backlog in the immigration courts, which are separate from the broader criminal justice and civil law system and have different rules.
According to data from Syracuse University’s TRAC system, the authority for tracking the backlog, there were more than 630,000 cases pending for fiscal year 2017 through the end of August, with more than 100,000 each in Texas and California.
The backlog of pending cases is a major contributor to issues with immigration enforcement and illegal immigration. When undocumented immigrants are caught and processed to have their cases adjudicated, they can receive court dates years in the future. Unable for legal and resource reasons to detain people indefinitely, the government paroles many of those individuals until their court dates, leaving them to establish lives in the US for years before potentially being ordered to be deported.
DOJ released the statistics on the heels of an investigation by Politico Magazine that found some reassigned judges with unfilled dockets and little to do. Citing internal DOJ documents obtained by a Freedom of Information Act request as well as judge interviews, Politico Magazine reported underworked judges and 22,000 postponed cases in their home courts.
Wednesday’s announcement seemed to rebut that report, citing progress the Justice Department had seen made.
“EOIR is pleased with the results of the surge of immigration judges to detention facilities and the potential impact it has on the pending caseload nationwide,” said acting Director James McHenry in a statement. “The Justice Department will continue to identify ways in which it can further improve immigration judge productivity without compromising due process.”
President Donald Trump’s executive orders have called for dealing with the bottlenecked immigration courts, including by reassigning judges and hiring more judges and attorneys. His administration is also looking at whether technology, such as video conferencing, can help.”
 ***********************************************************
Without actually seeing the raw data, which apparently has not yet been released to the public, it’s hard to assess the accuracy of the DOJ/EOIR “victory dance.” So far, all of these “improvements” do not seem to have resulted in a decrease in overall Immigration Court backlogs. And, the “technology'” of video conferencing, cited by Director McHenry,  is hardly “new” even at EOIR. For example, the Arlington Immigration Court has been doing all detained cases by televideo since approximately 2004. So, it’s difficult to see how “televideo technology” is going to make a material dent in the administrative problems facing the Immigration Courts. But, we’ll see. If nothing else, seems that the reports on ADR and details “got the attention” of the folks at DOJ and Falls Church.
And, even assuming that these stats eventually support EOIR’s claim, it still neither explains nor justifies detailing Immigration Judges to locations where they were not fully occupied at a time when the backlog was building.
Stay tuned!
PWS
10–04-17

 

NBC4 NY: FRAUD, WASTE, & ABUSE AT USDOJ — “ADR” EXPOSED! — TRUMP ADMINISTRATION KNOWINGLY RAN UP U.S. IMMIGRATION COURT BACKLOGS WITH UNNEEDED REASSIGNMENT OF IMMIGRATION JUDGES TO S. BORDER — DOJ Politicos Caused 276% Jump In NY Court Adjournments! — Then, DOJ Tried To Cast False Blame On Immigration Attorneys, Judges, & Obama Administration For Wasteful Adjournments That Sessions’s Politicos Had ORDERED — More Of My Interview With NBC Investigative Reporter Jodie Fleischer As Nationwide Expose Widens! — Stop The Abuse Of Due Process & Public Purse For Political Ends! — America Needs An Independent U.S. Immigration Court NOW!

Here’s the TV clip:

http://www.nbcnewyork.com/news/local/Immigration-Court-New-York-Judge-Investigation-448498463.html

Here’s the story:

As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court

By Chris Glorioso, Dave Manney, Erica Jorgensen and Evan Stulberger

Documents from the Trump administration show the president’s plan to ship more immigration judges for temporary assignments in border states is encountering a fundamental problem: there isn’t enough work for all the new judges to do.
According to an assessment of “Surge Hearing Locations,” dated April 4, 2017, the Department of Justice found six of the 17 immigration courts receiving transferred judges could not give those judges enough work to support a full docket.
INVESTIGATIVE’Phantom’ Judges Cause Confusion in NYC Immigration Court
In the assessment and supporting documents, DOJ staffers wrote about an immigration court in Karnes, Texas, where there was “concern regarding the lack of filings to sustain details from other courts”

Immigration: Crisis in the Courts
An overview on how immigration judges are struggling with a punishing backlog that in many cities is pushing cases far into the future, slowing deportations and leaving families in limbo.

The same assessment says another court in Texas’s Prairieland Detention Center “is not receiving enough cases to truly fill a docket or even come close to it.”
At the court inside Texas’s Dilly Family Residential Center, DOJ staffers wrote “the one judge detailed there is not occupied.”

At New Mexico’s Cibola County Detention Center, DOJ staffers found the caseload “has not been sufficient to keep the two immigration judges assigned to this docket occupied.”

Staffers also noted two empty courtrooms at New Mexico’s Otero immigration facility — and concluded there were “insufficient caseloads for further deployments.”

Scheduling records show the Justice Department repeatedly assigned five transferred judges to the immigration court in Louisiana’s LaSalle Detention Facility, even though an assessment of the court found “at this time there is not enough work for five judges. There is enough work for a reasonable docket and three judges.”

The report went on to conclude that inefficient transferring of detainees often means “there is very little work for a detailed judge to complete.”

In most cases, the transferred judges spend two weeks to a month hearing cases in out-of-state court.

The Department of Justice declined to comment for this story, but in response to a previous inquiry by Politico, an agency spokesman said “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process.”

While transferred judges may have had light workloads when they arrived in some of the border state courts, there is evidence the dockets they left behind suffered in their home courts.

A joint analysis by the News 4 I-Team and Telemundo 47 Investiga found case adjournments in New York City’s immigration court went up 276 percent — from an average of 139 adjournments in the three months before the judge transfers began, to 522 in the three months after judge transfers began.

Despite that, the Trump administration has increased its target from 50 judge reassignments, to at least 137 nationwide. Nineteen New York City immigration judges — more than half of the city’s 32-judge staff – participated in the temporary transfer program.

Olga Byrne, an advocate for refugees at Human Rights First, a nonprofit that represents asylum-seekers in court, said immigration attorneys at her organization have noticed the spike in adjournments and questioned whether judicial assignments border state assignments are worth the trouble.

“We’ve been in touch with a couple of judges who have expressed a lot of frustration about being sent to a detention center where they could take a long lunch break,” said Byrne. “They had only a few cases to consider for a whole week and yet they had to defer hundreds of cases from their docket in their home court.”


But it is clear the Trump Administration knew its decision to deploy more judges to border states would likely have negative impacts on dockets those judges leave behind in their home states.
In response to questions from U.S. Senate staffers, a DOJ memo concedes that “it is likely that the case backlog will increase for the locations from which an Immigration Judge is assigned.”

In New York City alone, there are more than 82,000 immigrants waiting for a court hearing. The average wait time is north of two and a half years. Nationwide, the immigration case backlog stands at more than 617,000.
Rep. Adriano Espaillat (D – Upper Manhattan), who came to America as an undocumented immigrant, said he fears the Trump administration is over-staffing border state courts to rapidly deport current border-crossers, while ignoring the population of non-detained immigrants who’ve been living and working in America’s big cities, hoping for a shot at citizenship for years.
“By shifting judges to the border, they are in fact maybe predicting that there will be lots of cases before them in those jurisdictions,” Espaillat said. “I am concerned this is part of a greater effort to put together a deportation machine – and proceed to arrest and deport thousands of people who are undocumented.”

This isn’t the first time a presidential initiative has been criticized for mucking up immigration court schedules and exacerbating the nationwide case backlog.
During the Obama Administration, the Justice Department launched an effort to prioritize court hearings for unaccompanied minors who enter the country illegally.

Byrne says that too was a political decision which negatively impacted the court’s ability to handle thousands of older cases languishing in the backlog.
“It’s not a new thing that they are basically fulfilling political objectives with the way that the immigration court dockets are managed,” Byrne said. “I think we should be equally critical of both [the Trump and Obama administrations] for using the immigration court to fulfill political objectives rather than focusing on making that court system work well and efficiently.”

 

Source: I-Team: Immigration Judges Sent to Courts With ‘Very Little Work’ – NBC New York http://www.nbcnewyork.com/investigations/Immigration-Court-New-York-Judge-Investigation-448498463.html#ixzz4uXiMR2xJ
Follow us: @nbcnewyork on Twitter | NBCNewYork on Facebook“

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To put this in context, during this massive abuse of the US Immigration Courts at the direction of Sessions and his incompetent politicos at the DOJ, the Chief Immigration Judge issued the notorious “Continuance Policy.”  That document not not very subtilely implied that unjustified continuance requests by private attorneys (all of them overburdened by the effects of ADR, and many working on a pro bono or “low bono” basis) and laxity in granting continuances by overwhelmed and demoralized U.S. Immigration Judges were major contributing factors in increasing backlogs. Nothing could be further from the truth!

In fact, conscientious Immigration Judges and dedicated private attorneys are the only ones trying to make this broken system work and to maintain at least a semblance of due process. Their main obstacles: improper politically-motivated interference from the DOJ and poor administration and failure to stand up to the politicos by out of touch bureaucrats at EOIR Headquarters in Falls Church who are afraid to “blow the whistle”because they value their jobs over due process. 

What kind of incompetents would draw the bulk of unneeded judicial details from what are known to be the most seriously backlogged Immigration Courts in the US, such as New York and Arlington? What type of incompetents would “study” the impact and need for the details after the fact, rather than carefully planning in advance? Assuming they were necessary (which they weren’t) why weren’t judicial details drawn from among the Assistant Chief Immigration Judges in Falls Church Headquarters who are never assigned actual cases? They, actually have time on their hands. And why does a system in crisis with inept management have highly-paid bureaucratic administrators like the ACIJs who never do any real judging? What makes a person a “judge”if he or she never “judges” anything?

Yes, as I’ve stated before, the Obama Administration enforcement policies and political interference from the Obama DOJ helped drive the backlogs to new heights. But, after taking over an obviously broken system, rather than doing the right thing and fixing the Immigration Courts with bipartisan legislation to create an independent Immigration Court System, with adequate resources, professional court administration, and freedom from political interference in its due process functions, the Trump Administration intentionally made things much, much worse! More judges have resulted in more backlogs because of politicized, incompetent judicial administration and poorly designed enforcement policies at DHS. If that doesn’t tell you something is seriously wrong, what will?

PWS

10-04-17

 

 

 

 

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

Here’s the video and graphs:

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

Here’s the story:

“By Jodie Fleischer and Rick Yarborough

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

 

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

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

 

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

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

 

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

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

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

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

PWS

10-03-17

 

 

DUE PROCESS WINS IN 9TH CIR! – DHS & IJS REQUIRED TO CONSIDER “ABILITY TO PAY” IN SETTING BOND! – HERNANDEZ V. SESSIONS

9TH-HERNANDEZ-BOND-2017

Hernandez v. Sessions, 9th Cir., 10-02-17 (Published)

PANEL: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

CONCURRING & DISSENTING OPINION: Judge Fernandez

KEY QUOTE:

“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the government’s policy of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ financial circumstances or alternative conditions of release. The government has failed to offer any convincing reason why these factors should not be considered in bond hearings for non-citizens who are determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond. The irreparable harm to Plaintiffs of detention pursuant to bond amounts determined through a likely unconstitutional process far outweighs the minimal administrative burdens to the government of complying with the injunction while this case proceeds.

The district court’s order granting the preliminary injunction is AFFIRMED.

 29 The government also challenges the requirement that it meet and confer with Plaintiffs to develop guidelines for future immigration hearings. According to the government, this requirement gives “Plaintiffs’ counsel veto authority over the terms and guidelines to be used in those bond proceedings, [which] violates Congress’s delegation of such authority to the Executive.” To the contrary, the district court retains authority to resolve any disputes between the parties regarding implementation of the injunction. The requirement that the parties meet and confer is merely an administrative mechanism to reduce unnecessary burdens on the district court’s resources. It is an entirely ordinary exercise of the district court’s authority to manage cases and to encourage cooperation before parties resort to asking the court to resolve a dispute. See, e.g., C.D. Cal. L.R. 7-3 (requiring parties to confer prior to filing most motions and to file the motion only if the parties are “unable to reach a resolution which eliminates the necessity for a hearing”).”

KEY QUOTE FROM JUDGE FERNANDEZ, CONCURRING & DISSENTING:

“I agree that the district court did not abuse its discretion when it decided to issue a preliminary injunction requiring the consideration of “financial ability” and “alternative conditions of supervision”1 in making determinations regarding the release of aliens who have been detained pursuant to 8 U.S.C. § 1226(a). However, I do not agree with the breadth of the injunctive order that was issued. Thus, I respectfully concur in part and dissent in part.”

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

Read the full decision at the above link.

WHY IT’S IMPORTANT

With an estimated 10 to 11 million “undocumented migrants” currently in the U.S., hundreds of thousands of cases annually being added to the U.S. Immigration Courts’ already out of control docket of 630,000 cases, and the Trump Administration’s “gonzo” enforcement policy where line agents often arbitrarily decide which migrants to place in Immigration Court (presumably somewhat driven by the need to show “numbers” for budget and performance purposes), one thing is obvious: The system would collapse immediately if everyone apprehended by the DHS at the border and in the interior simply insisted on a full due process “Individual Merits” hearing. Thus, the migrants’s exercise of the Constitutional right to due process and a meaningful opportunity to be heard is the enemy of DHS’s out of control, “gonzo” enforcement.

So, what is DHS to do to suppress this dangerous exercise of constitutional rights? Here are DHS’s “strategies:”

  1. Avoid the hearing process entirely by using some form of “expedited removal” which avoids Immigration Court altogether;
  2. In absentia orders, often based on incomplete address information and inadequate warnings being given to migrants by DHS and/or on sloppy address recording and hearing notice procedures by DHS and EOIR resulting in individuals being clueless about their so-called “final orders” and therefore ill-equipped to exercise their statutory right to move for reopening;
  3. Coercive detention, used to demoralize, discourage, and duress migrants into “waiving” their due process rights and agreeing to depart without a merits hearing either by so-called “voluntary departure” or an uncontested final order.

Obviously, setting reasonable bonds that allow-income migrants can actually pay interferes with the full coerciveness of detention. Once released, migrants have a better chance of locating an attorney, filing a plausible application for relief, and ultimately being granted permission to stay. Therefore, resisting and “monkey wrenching” reasonable release on bonds is a key element of the current DHS “gonzo” enforcement strategy.

One of the ways that most fair U.S. Immigration Judges combat this is by using various “arbitration and mediation skills” to encourage DHS to accept reasonable bonds and waive appeal. But, as previously reported, counsel across the country report that DHS is refusing to negotiate bonds and appealing many of those set by the IJ. In other words, DHS is hoping that the coercive effect of detention will force folks to leave without a hearing before they run out of detention space in the New American Gulag.

Thus, U.S. Immigration Judges have become somewhat feckless in the bond process. DHS simply “blows off” the IJs’ entreaties to negotiate because DHS knows that they can unilaterally block release pending appeal anyway. And, as I previously pointed out, the BIA routinely holds bond appeals pending the completion of detained  merits hearings and then simply dismisses the bond appeal as “moot.” As one (now former) Assistant Chief Counsel in Arlington undiplomatically informed me during a bond hearing shortly after I took the bench in 2003: “You can enter any order you want Judge, but the Detention Officer is going to decide whether or not this respondent gets released.” That’s the point at which I became an “Article I convert.”

Consequently, an Article III (a/k/a “Real”) Court enforcing due process and also requiring the DHS to negotiate some reasonable criteria and procedures for release on bond is both essential to our Constitutional system of due process and justice and also is a direct threat to unbridled DHS “gonzo enforcement.” As you can see from “FN 29” above, DHS has absolutely no interest in settling this case on a reasonable basis, although urged to do so by both the US District Court and the Court of Appeals. They expect and want the Article III Courts to “just roll over” like the “captive” Immigration Courts do.

Consequently, we can expect the Administration to fight tooth and nail against all efforts to put meaning in the currently largely false promise of Due Process in Immigration Court! Expect a DHS appeal to the Supremes! Stay tuned!

PWS

10-03-17

 

 

 

TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT MEANS MORE ARRESTS, FEWER DEPORTATIONS, MORE “COLLATERAL DAMAGE,” OUT OF CONTROL COURT DOCKETS!

https://www.washingtonpost.com/world/national-security/deportations-fall-under-trump-despite-increase-in-arrests-by-ice/2017/09/28/1648d4ee-a3ba-11e7-8c37-e1d99ad6aa22_story.html

Nick Miroff reports in the Washington Post:

“Despite President Trump’s push for tougher immigration enforcement, U.S. agents are on pace to deport fewer people in the government’s 2017 fiscal year than during the same period last year, the latest statistics show.

Trump took office pledging to round up as many as 3 million drug dealers, gang members and other criminals he said were living in the United States illegally. But the most recent figures from Immigration and Customs Enforcement (ICE) indicate the government may be having a hard time finding enough eligible “bad hombres,” as the president described them, to quickly meet those targets.

As of Sept. 9, three weeks before the end of the 2017 fiscal year, ICE had deported 211,068 immigrants, according to the most recent figures provided by the agency. ICE removed 240,255 people during the government’s 2016 fiscal year.

The lower totals are not for lack of effort. According to ICE, its agents have made 43 percent more arrests since Trump took office versus the same period last year.

 

While ICE took into custody more immigrants with criminal records, the fastest-growing category of arrests since Trump’s inauguration are those facing no criminal charges. The agency arrested more than 28,000 “non-criminal immigration violators” between Jan. 22 and Sept. 2, according to the agency’s records, a nearly threefold increase over the same period in 2016.”

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Read the complete article at the link.

With the border evidently under control, a shortage of criminals to remove, and overwhelmed US Immigration Courts, we obviously DO NOT NEED any additional DHS agents right now. DHS does, however, need better technology, much better management, and a rational enforcement strategy.

While it won’t happen with this Administration, here’s what a rational immigration plan would look like:

  •  Focus interior enforcement on migrants who have committed serious crimes or who are involved in criminal enterprises.
  • Work with local authorities and communities to take criminals off the streets, break up gangs, and curb human trafficking operations, while not threatening undocumented individuals who are otherwise law abiding members of the community.
  • Institute a robust prosecutorial discretion program to get cases of non-criminals off overcrowded Immigration Court dockets (its likely that at least 2/3 of the 600,000+ pending cases could be removed in this manner) pending a legislative proposal to give them some type of legal status and work authorization
  • Devote time and resources to developing an independent Immigration Court that will be able to process the remaining cases in a reasonable manner while establishing realistic and consistent expectations for adjudication of new cases entering the system.

If the border really remains under control, and robust realistic levels of legal immigration eventually are set by Congress, there should be sufficient enforcement personnel available to apprehend those who penetrate the border and to place them in a functioning, due process focused Immigration Court system that will fairly, professionally, humanely, and timely determine who should remain (including fair, honest, and de-politicized decisions on asylum and other legal protections) and who must leave.

The above system would have two essentials that the current immigration system sorely lacks — integrity and credibility.

PWS

09-28-17

NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW — A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATON COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM — By Paul Wickham Schmidt, United States Immigration Judge (Retired)

  • NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW
  • A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATION COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM
  •  
  • By Paul Wickham Schmidt
  • United States Immigration Judge (Retired
  • Let’s look at a few pieces of the EOIR “response” to the I-Team’s Recent Expose. You can read that full exercise in bureaucratese in a separate blog right here:  http://wp.me/p8eeJm-1tn

First, the EOIR bureaucracy has no coherent plan to address the backlog that now has risen to more than 628,000 pending cases (even more than at the time Jodie interviewed me) notwithstanding more U.S. Immigration Judges on board! The agency is “studying” the matter. Usually that means that politicos at the DOJ are looking for ways to further truncate Due Process and fairness for respondents in the Immigration Courts.

 

“Studying” the matter. Oh, please! Let’s look at the most glaring failure highlighted by Jodie, the failure to have even a rudimentary e-filing system. Back in 2001, a group of us, including computer wonks, field personnel, and Senior Executives were assigned to an e-filing project. We submitted a detailed report, complete with plans for a pilot program to the EOIR Executive Group, where it promptly was buried. More than 15 year later, and following several more waste of time studies, there still is no e-filing system in the U.S. Immigration Courts! Not even a viable pilot program! In the meantime, almost every other court system in America has implemented e-filing. For heaven’s sake, even the local courts in Wisconsin have e-filing capability!

 

Second, EOIR makes the totally disingenuous statement that: “Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. To this end, EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance.”

 

This is a blatant misrepresentation of what caused the real problem and a grotesque failure to accept responsibility! The current crisis has little, if anything, to do with Immigration Judge productivity (at an average of 750 completions per judge, U.S. Immigration Judges are already working 50% above the recommended maximum level for their positions — if anything, as shown by some of the recent gross errors exposed by U.S. Circuit Courts, both the Immigration Judges and the BIA Judges should be slowing down to get things right — “haste makes waste”).

 

No the real problem here is quite simple: bureaucrats at EOIR, the politicos at DOJ, and Congress. Let’s start with Congress. While Congress has belatedly provided some extra positions and funding for the Immigration Courts, for years Congress has been responsible for overfunding DHS enforcement while underfunding the Immigration Court system.

 

Moreover, the idiotic Government shutdown during the Obama Administration hurt immeasurably. During at least one such shutdown, the vast majority of Immigration Judges, those assigned to the non-detained dockets, were determined by the DOJ to be “nonessential,” sent home on “furlough,” and our dockets were cancelled. When we finally returned to court, there was docket chaos. The system really never has recovered from that man-made disaster. Moreover, both Congress’s failure to fund and DOJ’s idiotic designation of us as “nonessential” sent strong messages that the entire Immigration Court is a “who cares” operation from both a Congressional and an Administration standpoint. And mindless hiring freezes resulting from incompetence in Congress and the Executive Branch didn’t help either.

 

Then, years of “Aimless Docket Reshuffling” at the behest of DOJ politicos carrying out improper enforcement initiatives through the courts turned chaos into absolute bedlam! Senior Immigration Judges were reassigned from “Merits Dockets” to “meet and greets” for Unaccompanied Minors who really belonged before the DHS Asylum Office. Other judges were taken off of “ready for trial” merits dockets and assigned to hear cases of recently arrived “Adults With Children,” many of whom had not received sufficient time to find lawyers and whose cases were often “Not Quite Ready For Prime Time.” Judges were detailed from full “home” dockets to the Southern Border where they often weren’t needed or didn’t have enough work to keep busy. Then, the Trump Administration took judges off of Merits Dockets that had been pending for years and reassigned them to obscure detention courts, where they often were not fully occupied or were taking over dockets from other judges who were left with nothing to do.

 

The DOJ/EOIR bureaucracy long ago deprived sitting Immigration Judges of any meaningful control over their local dockets. To now insinuate that Immigration Judge “productivity” or “continuances granted by local Immigration Judges” are significant causes of the problem is an outrageous attempt to cover up the sad truth. Additionally, over the past four Administrations, the DOJ has refused to implement Congress’s statutory grant of contempt authority to U.S. Immigration Judges. This deprives Immigration Judges of even the most rudimentary tools possessed by judges of comparable authority for maintaining order and control of their courts.

 

Then there are continuances. As Hon. Jeffrey Chase and I have both pointed out in our separate blogs, the attempt to blame judges and overwhelmed private counsel, particularly those serving for NGSs or pro bono, for requesting too many continuances is totally bogus. The majority of the lengthy continuances in Immigration Court are the result of Aimless Docket Reshuffling imposed by the politicos at DOJ and carried out by compliant administrators at EOIR who have lost sight of their due process mission but not of the need to save their jobs by cooperating with the politicos.

 

As Jodie pointed out, there are lots of folks out there, many with potentially winning cases, who are ready and would like their “day in court.” But, the system is too busy shuffling things around to satisfy the President’s Executive Orders and trying to fulfill the Attorney General’s enforcement priorities to deliver justice in a reasonable, predictable, and orderly manner.

 

The private bar and NGO attorneys, many of whom serve pro bono or low bono, are the unsung heroes of this system. They are the only reason the system hasn’t completely collapsed yet! Their intentional mistreatment and the disrespect showered on them by spineless bureaucrats at EOIR and the cowardly politicos at DOJ is nothing short of a national disgrace!

 

Then, let’s take a closer look at the DOJ/EOIR hiring fiasco! According to a recent GAO study recommending improvements at the Immigration Courts, Immigration Judge hiring has taken an astounding average of two years! That’s longer than it takes for a Senate-confirmed political appointment or than it took the Roosevelt Administration to build the Pentagon during the New Deal! But, the results of this glacial, “Rube-Goldberg” process are disturbingly predictable and pedestrian. Nearly 90% of the Immigration Judges hired over this and the past Administration came from prosecutorial or other government backgrounds. With due respect, one could probably have produced similar results by “blind drawing” applications from senior government attorneys from a box. Neither EOIR nor DOJ has put forth an efficient, transparent, merit-based program to replace this mess, although many worthy models exist — such as the merit hiring procedures for U.S. Bankruptcy Judges and Magistrates which usually involve widespread input from leading practitioners in the areas they will be serving.

 

Notwithstanding the current “crisis,” EOIR and DOJ are sitting on an Immigration Judge vacancy rate of 15%! There are currently 55 judicial vacancies! EOIR was only able to hire and bring on 64 new Immigration Judges during the entire past year. That will barely be enough to fill the currently vacant positions and any retirements or other departures. So, the idea that a DOJ plan to budget for more judges is going to solve this crisis any time in the foreseeable future is nonsense.

 

 

Let’s take a quick look at the numbers in the DOJ “never-never land.” They project 449 Immigration Judges by the end of FY 2018, which is September 30, 2018, one year from now. Let’s also assume the highly unlikely: that Congress grants the request, the money is appropriated, additional courtrooms are built, additional staff is hired, all the judicial positions are filled, and the additional Immigration Judges are all on board and up to speed by September 30, 2018.

 

449 Immigration Judges could at most, complete approximately 337,000 cases without impeding due process. Therefore, using the DOJ’s own figures, and giving the most optimistic outlook possible, it would take nearly two years, practically to the end of this Administration, just to complete all of the cases currently on docket if no additional cases were filed! The idea that 449 Immigration Judges could do that plus handle incoming cases without creating a new backlog is facially absurd. DOJ’s own numbers refute it. What is clear is that neither the politicos at DOJ nor the bureaucrats at EOIR have any idea of how to actually solve the backlog problem and reestablish order in the Immigration Courts.

 

So, what really needs to be done!

 

First and foremost, we need an independent U.S. Immigration Court outside the DOJ. And that means a return to Due Process as the sole function and guiding light of the Immigration Court just like it is for all other independent courts. DHS Enforcement priorities should be considered and accommodated where possible without compromising due process. But, they are just one of many factors that go into running an efficient due process court system. DHS Enforcement should not be “driving the train.”

Given that approximately half of the individuals now in Immigration Court appear to be entitled to some form of relief, independent U.S. Immigration Judges could develop ways to force the DHS to identify these cases and either resolve them outside of court or move them up to “short dockets” for quick resolutions based largely on stipulations and focused testimony or legal arguments.

 

Moreover, I know from hard experience that even though independent Article III judges were technically not supposed to review “prosecutorial discretion“ they had many creative ways to basically tell the INS (now DHS) to get certain low priority or extreme humanitarian cases off the docket — or else. The current Administration’s abusive removal of prosecutorial discretion from local DHS prosecutors is a major contributing factor in the current docket mess. An independent court would be able to stand up to this kind of nonsense, rather than “going along to get along.” No court system in American operates without a heavy dose of PD from the prosecutors.

 

Additionally, implementation of contempt authority, extending to both private attorneys and Government prosecutors, would give Immigration Judges real clout in stopping abuses of the court’s docket and moving cases along in a failure and reasonable manner.

 

Second, the EOIR bureaucracy needs to be replaced with a real court structure patterned on other Federal Courts. I’d hazard to say that no other functioning court system in America has as Byzantine and as bloated a bureaucracy as EOIR. Far too many of the positions and resources are in “Headquarters” in Falls Church rather than in the local courts where they belong. Docket control needs to be returned to sitting Immigration Judges who are in the best position to work with the local bar, pro bono providers, the DHS Office of Chief Counsel, and the Court Administrator to establish the most efficient and fair ways of scheduling cases and moving along dockets given local conditions and limitations.

 

And “Job One” at the local Immigration Court level should be to work with all parties to insure that Immigration Court cases are docketed and scheduled in a manner that insures, to the maximum extent humanly possible, that no individual who wants a lawyer is required to appear without one. Representation by competent counsel is the single most important ingredient of achieving due process in the U.S. Immigration Courts.

 

Third, the U.S. Immigration Courts need a new professional Administrative Office patterned on the Administrative Office for U.S. Courts and responsible to a Judicial Council, not politicos at the DOJ. Courtroom planning, technology, security, files management, training, planning for the future, and hiring are all not up to professional court management standards in the current system. In particular, the outdated, often unreliable technology and inadequate space are glaring issues in a high volume system like the Immigration Courts.

 

Also, the current judicial selection system is a bad joke. It is neither transparent nor timely, and it totally lacks credibility in the “real world” of immigration practice. The Immigration Courts need a non-partisan, merit-based, efficient hiring system that gives local practitioners and judges as well as government counsel some meaningful input while producing results in a timely fashion. There are many merit-based models out there like those for hiring U.S. Bankruptcy Judges, U.S. Magistrates, and Judges for the Superior Court of DC.

 

Fourth, the system needs an Appellate Court that acts like an independent appellate court not a service center catering to the politicos at the DOJ. The current BIA’s lack of diverse backgrounds among its Appellate Immigration Judges and glaring lack of Immigration Court or asylum expertise has resulted in a weak body of asylum law and insufficient control over wayward judges who are unwilling to grant relief in appropriate situations. There are many asylum cases out there in the backlog that should and could be rapidly granted. Moreover, many of them probably should have been granted at the DHS Asylum Office. The current Board has failed to take appropriate corrective action in those courts where hostility to or misinterpretation of laws favorable to respondents has resulted in indefensibly low rates of granting relief. This, in turn, encourages the DHS to keep cases on the court docket that properly should be settled out of court, returned to the Asylum Office, or sent to the USCIS.

 

The current Board “is what it is,” It can’t really help itself, as a result of questionable choices outside of its control made by the politicos at the DOJ over several Administrations. I’m not suggesting that current BIA Judges should not be “grandfathered” into an independent Appellate Division of the Immigration Court. But future Appellate Judge appointments should be strictly merit-based and should be focused on recognizing proven expertise and fairness in applying asylum laws and expertise gained in activities beyond just government service, particularly those in clinical academic practices or serving the pro bono community through NGOs.

 

Fifth, and finally, the U.S. Immigration Courts need e-filing now! The time for “study” is long over! Existing systems in other courts can be tailored for U.S. Immigration Court use. It’s no longer “rocket science.” It’s “Basic Professional Court Management 101.” It’s time for action, not more studies, unfulfilled promises, and bureaucratic smokescreens! If nothing else, the failure of the DOJ over a number of Administrations to accomplish this very basic ministerial task demonstrates beyond any reasonable doubt its incompetence and inability to administer the U.S. Immigration Courts in anything approaching a minimally professional manner.

 

Yup, I’ve set forth an ambitious agenda. But, unlike the “DOJ/EOIR BS,” it’s based on real life experience and decades of observation at all levels inside and outside this broken system. If Congress and the Administration can’t get their collective acts together and establish an Independent Article Immigration Court now, there will be a “lock-up” point at which almost everything will stop functioning. There is no way that the current EOIR technology and inadequate planning can keep on absorbing even more cases and even more positions.

 

And if, as I predict, rather than doing the right thing, this Administration responds with mindless hurry up denials of due process, the cases will start piling up in the Article III Courts and being returned to the Immigration Courts for “do-overs” in droves. I’ve actually seen it happen before in the Bush Administration. But, this is much worse because there are many more cases and this Administration is even more clueless about how to deal with immigration enforcement and the Immigration Court system. In the end, it’s the folks who depend on the Immigration Court system for justice and the overall concept of our courts being able to deliver even-handed justice in a fair and reasonable manner that will be hurt. And, folks, that’s going to affect all of us at some point in the future.

 

Don’t accept more ridiculous shameful bureaucratic, “do nothing” BS from the DOJ! It’s time to hold DOJ and EOIR fully accountable for their failure to provide basic Due Process in the U.S. Immigration Courts and for Congress to accept their fair share of the blame!

 

Tell your Senators and Representatives that you’ve had enough of this nonsense and gross waste and mismanagement of government resources! Fixing the U.S. Immigration Courts now must be one of our highest national priorities! Those who would continue to sweep this problem under the rug deserve to be voted out of office! No more BS and excuses; Article I now! Due Process Now!

Other than the above, of course, I think the current system is great!

PWS

09-26-17

 

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

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

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

 

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

EOIR is committed to a multi-level strategy to maximize our adjudicatory capacity, including the hiring of more judges, working with our federal partners to make the immigration process more efficient, and the increased use of video-teleconference capabilities. EOIR is undertaking a broad, agency-wide effort to review and reform its internal practices, procedures, and technology in order to enhance immigration judge productivity and ensure that cases are adjudicated in a fair and timely manner across all of the agency’s courts. EOIR records show that through the end of August 2017, the immigration courts had 628,698 pending cases. Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. To this end, EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance.

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

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

How many open positions are there currently for immigration judges?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You appear to be in Virginia. Not your state?

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

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

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

WHO ARE THESE IMMIGRANTS?

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

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

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

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

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

“We’re stuck here,” she said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABOUT THE DATA

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

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

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

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

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

Next up, the EOIR/DOJ response!

PWS

09-26-16