EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

EOIR SHAKEUP:  Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019.  The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. 

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ. 

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values. 

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

 

The Immigration Court: Issues and Solutions

The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.

I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions.  I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom.  Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis.  But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result.  But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy.  It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

If we accept this point of view, I believe that recent developments provide a cause for concern.  As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,”  a point that the partisan nature of recent Supreme Court confirmation battles has underscored.

Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function.  The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.

A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution.  Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts.  This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.

The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge.  To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors.  Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.

However, the judges still remained employees of the INS, the agency prosecuting the cases.  Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality.  In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained within the Department of Justice, as did the INS.  As both the INS commissioner and EOIR director reported to the same boss at Main Justice, and as INS was a much larger, more influential agency than EOIR, the former continued to be able to exert undue influence on the latter agency. That dynamic ended when the functions of the old INS were moved into the newly-created Department of Homeland Security in 2003.  Actually, EOIR was slated to move to DHS as well, but managed to finally achieve some space from ICE once again only through the IJ’s own lobbying efforts.

Although EOIR did begin sporadically appointing private attorneys to the bench in the 1980s, the number of more liberal private bar advocates appointed increased under the Clinton Administration in the mid-1990s, significantly changing the overall makeup of the immigration judge corps.  Many of those more liberal hires became retirement eligible under the present administration.

It wasn’t until 1996 that Congress finally recognized immigration judges by such title in statute.  As I was a new judge at the time, I can report that yet again, this development was accomplished by the immigration judges themselves, who chipped in to pay a lobbyist to bring about this change, with no assistance from EOIR management.

Soon thereafter, the immigration judge’s union began advocating for independent Article I status.  In the 1990s, then-Congressman Bill McCollum of Florida sponsored such a bill, which was opposed by EOIR management (out of its own self-interest), and which did not advance in Congress.  A very similar bill was drafted last year by New York Senator Kristin Gillibrand, which was never proposed to the Republican-controlled Congress.  A main difference between the 1990s proposal and present one is the climate in which they are made. While many of the arguments for Article I status involved hypothetical threats in the 1990s, over the past two years, many of the fears that gave rise to such proposal have become reality.

Some of the recent developments underscoring the urgency of the need for Article I courts include:

Politicized IJ hiring.  Following the more diverse corps of IJs hired under the Clinton Administration, a backlash occurred under the George W. Bush Administration.  A report following an investigation by the DOJ Inspector General’s Office detailed a policy of extending IJ offers only to those who had been found to meet the proper conservative, Republican profile.  For example, the report indicated that one candidate was found to have the proper conservative views on the “three Gs:” God, Guns, and Gays.

Although such practices came to an end in the latter part of the Bush Administration, in May of last year, a letter by 8 members of Congress. Prompted by whistleblowers within EOIR, requested the DOJ Inspector General to investigate new reports of a return of such politicized hiring under the present Administration.  At present, nearly all new IJ hires are former prosecutors or those who otherwise have been deemed to fit this administration’s ideological profile.

Completion quotas:  As of October 1, 2018, IJs are required to satisfy completion quotas set by EOIR management.  According to the President of the Immigration Judges’ Union, Hon. Ashley Tabaddor, no other class of judges are subject to similar quotas.  Judge Tabaddor has stated that IJs cease to be true judges under such system, as an adjudicator who must repeatedly choose between the requirements of due process and their own job security is one who lacks the independence required of judges.

Since October 1, judges are treated to a graphic on their computer screens each day which resembles the gauges on an airplane or sports car, with an animation of a needle which in seven different “gauges” will either be in the green, yellow, or red zone.  Not surprisingly, IJs find this demeaning.

Under the quotas, IJs are each required to complete 700 cases per year.  95 percent must be completed at their first scheduled individual hearing.  The judges may not have more than 15 percent of their decisions remanded or reversed by the BIA.

Judges have reported that when they find it necessary to continue a merits hearing, they soon receive a call from management requiring them to provide a detailed defense of their decision to continue the case.  In some courts, EOIR management has asked the court’s judicial law clerks to act as spies by listening to the recording of the continued hearing and reporting whether the in-court statements of the judge match the explanation the judge later provided to their supervisor for the continuance.  As a result, judges appointed by the Attorney General of the U.S. to hear life-and-death claims for asylum now feel the need to play-act on the record to avoid punishment from their superiors.

Another thing about quotas: right after they were announced, a reporter from NPR called me to ask what impact they were likely to have on judges.  In response, I suggested that we look at the most recent case completion figures on EOIR’s website.  I said we should first look at the court with the highest denial rate in the country, Atlanta. We divided the total number of case completions by the number of judges, and found that these judges averaged over 1,500 completions for the year, or more than double what was needed to meet the quota.  We then did the same for one of the more liberal courts in the country, the New York City court, and found that the judges there averaged just 566 completions a year, well under what would be needed to satisfy the quota. So just to be clear, the quotas are not designed to have a neutral impact; the administration hopes that forcing more completions will also result in more denials.

It should be noted that despite these quotas and numerous other efforts by the Trump Administration to supposedly increase the court’s productivity, the backlog has actually increased by 26% over the past two years.

Continued impact of the 2003 BIA purge:  In 2002, then Attorney General John Ashcroft expressed his dismay for some of the BIA’s more liberal decisions.  His response was to strip some of the BIA’s authority (in particular, taking away its de novo review authority over immigration judges’ findings of fact).  Ashcroft also announced that, in order to improve an overburdened BIA’s efficiency, he would reduce its size from 21 to 12 members. If you believe that the last part makes no sense, believe me, you are not alone.

One year later, Ashcroft followed through on his threat, removing every judge he deemed to be liberal from the BIA.  The Board, which had always been conservative leaning, subsequently took a much greater tilt to the right.  There was no correction under the Obama Administration, meaning that the BIA for the past 16 years and counting has been devoid of any liberal members.  It’s present chair, David Neal, is a Republican who served as a staff member to former U.S. Senator and Kansas Governor Sam Brownback.  The Board’s most prolific judge under the Trump Administration, Garry Malphrus, had been appointed to the bench after playing a role in the “Brooks Brothers riot,” in which Republican faithful hampered the recount of ballots in Florida following the 2000 presidential election.  Board Member Ed Grant was a Republican staff member to Rep. Lamar Smith, a Texas Republican with anti-immigrant views who previously chaired the House Immigration Subcommittee.

Of course, the result has been the issuance of more conservative precedent decisions which are binding on immigration judges.  And due to the common practice of Circuit Courts to accord deference to those decisions, under Chevron, Brand X, or Auer deference, humane interpretations of the immigration laws have become harder to come by.  Prior to 2002, the BIA commonly decided precedent decisions en banc, often providing a range of concurring and dissenting opinions, some of which were later adopted by the circuit courts on appeal.  But since that time, the Board only publishes three-member panel decisions as precedent, with a very small number of dissents.

A recent article in the Stanford Law Review by Prof. Jennifer Lee Koh provides an example of one of the effects of the Board’s more conservative makeup.  Being convicted of what is characterized as a “crime involving moral turpitude,” or CIMT, may render noncitizens removable from the U.S. and ineligible for immigration benefits or reliefs.  An attempt by the last Attorney General to serve under the Bush Administration, Michael Mukasey, to increase the BIA’s ability to find crimes to be CIMTs by creating his own alternative to the categorical and modified categorical approaches was vacated by his successor, Eric Holder (after having been rejected by 5 Circuit Courts of Appeal).  As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

As to the law of asylum, not long after the purge of its liberal members, the BIA issued six precedent decisions between 2006 and 2014 making it more difficult to qualify for asylum based on membership in a particular social group.  The standard set out by the BIA in its 1985 decision Matter of Acosta – requiring the group to be defined by an “immutable characteristic” that its members either cannot change, or that is so fundamental to their identity that they should not be required to change it – had worked well for 21 years.  However, with no liberal push back, the more right-leaning Board members chose to add the additional requirements of particularity and social distinction to the PSG determination. The Board’s reliance on 2002 UNHCR Guidelines as justification for adding the latter requirement was most disingenuous, as the UNHCR employed the word “or” to allow those unable to otherwise satisfy the PSG requirements an alternative means of doing so, thus expanding those able to meet the definition.  But by changing the “or” to an “and,” the Board required applicants to establish both immutability and social distinction, thus narrowing the ranks of those able to qualify.

The changes had a dramatic impact on the large number of refugees escaping gang violence in Central America who generally relied on particular social group-based asylum claims.  Furthermore, while family has always been acknowledged as a particular social group, the BIA issued a decision in 2017 making it much more difficult to establish that the persecutor’s motive is on account of the victim’s family membership.   In that decision, the BIA offered the Bolshevik assassination of members of the family of Czar Nicholas II in Russia in 1918 as an example of what must be established to be granted asylum based on one’s family membership.   I have yet to find any lawyer who represents clients whose family presently enjoys a similar standing to the Romanov family in 1918 Russia. The ridiculously narrow interpretation was obviously designed to make it close to impossible for such claimants to qualify for relief.

The BIA also recently held that a Central American woman who was kidnaped by a guerrilla group and forced to cook and clean for them while in captivity had provided material support to a terrorist organization, thus barring her from a grant of asylum.  In reaching such holding, the Board determined that the victim should have reasonably known that the Salvadoran guerrilla group that kidnaped her was a terrorist organization in 1990, a time at which the U.S. government did not seem to yet hold such view.

Of course, IJs are bound by these decisions.  There have always been IJs who have forwarded new and sometimes creative legal theories which overcome these Board-imposed obstacles in order to grant relief.  But as stated previously, the quota guidelines will deter such creative decisionmaking by threatening the IJ’s job security. Judges should not have to fear repercussions for their good faith interpretations of the law.

Under prior administrations, ICE prosecutors have agreed in worthy cases to waive appeal when appropriate, and would even stipulate to grants of relief in worthy cases.  Also, under the previous administration, ICE would commonly agree to exercise its prosecutorial discretion to close non-priority cases. However, ICE attorneys at present are directed to oppose everything and agree to nothing.

Increased AG certifications:  In 2016, former Bush Attorney General Alberto Gonzales co-authored an article in the Iowa Law Review suggesting that instead of issuing a controversial executive order, the Obama Administration should have instead had the Attorney General issue precedent decisions in order to change the immigration laws.  A strange regulatory provision allows an Attorney General to direct the BIA to refer any decision for review. The AG can then simply rewrite any decision as he or she sees fit, creating precedent binding on the BIA, IJs, and DHS.

Clearly, the present administration is using Gonzales’s article as its playbook.  Apparently not satisfied with its power to appoint its own immigration judges, with packing the BIA with conservative former Republican Congressional staffers, and with its power to publish regulations interpreting the immigration laws to its own will and to issue policy directives binding on the judges, the Attorneys General serving the Trump Administration are also issuing precedent decisions through the process of self-certification at an alarming rate.  The decisions are different from those of other administrations, in that they are self-certified through procedural irregularity, are decided based on issues entirely different than those presented before the IJs and the BIA, and upend what had been settled issues of law that were not being questioned by either party to the action.

Former Attorney General Jeff Sessions used the certification process to make immigration judges less judge-like by stripping away necessary tools of docket management such as the right to administratively close proceedings, to terminate proceedings where appropriate, or to freely grant continuances in pending cases.  Sessions certified one case, Matter of E-F-H-L-, to himself four years after the BIA’s decision in the case, after it had been not only remanded back to the IJ, but had subsequently been administratively closed to allow the respondent to await the approval of an immigrant visa petition.  Sessions’s purpose in digging such an old case up was to vacate its holding guaranteeing asylum seekers a right to a full hearing on their application before an immigration judge. And his interest in doing so was to suggest to immigration judges that a way to increase their efficiency would be to summarily deny asylum claims without affording a hearing, which some judges have actually started to do.  And in another decision, Sessions suggested exactly what type of asylum cases he deemed most appropriate for such treatment.

Sessions’s most egregious decision attempted to unilaterally strip women of the ability to obtain asylum as victims of domestic violence.  This was not an issue that was in dispute, but had been a matter of settled law since 2014, when the BIA issued its precedent decision in Matter of A-R-C-G-, in which the DHS had stipulated that “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group to which asylum could be granted.

In certifying the case of Matter of A-B- to himself to reconsider such holding, Sessions invited briefs from all interested parties.  A total of 14 briefs were filed, two by the parties, and 12 amicus briefs (including one from my group of former IJs and BIA members).  The briefs from both parties (i.e. including DHS), and of 11 of the amici (the exception being FAIR, an anti-immigration group that regularly files the sole opposing amicus brief in such cases) all concluded that A-R-C-G- should not be vacated, and constituted a valid application of law which satisfied all of the BIA’s post-purge obstacles described above.  Thus, with the exception of FAIR, there was agreement by DHS, the BIA, the private bar, legal scholars, advocacy groups, and under international law as to the validity of the existing practice.

Nevertheless, Sessions issued a poorly-written decision in which he strongly disagreed, and vacated A-R-C-G- while attempting to make it close to impossible for such claims to succeed in the future.  I emphasize the word “attempting,” because fortunately, Sessions is a terrible lawyer with no asylum law expertise.  As a result, his decision is largely dicta, which even Department of Justice attorneys admit only managed to vacate A-R-C-G- without otherwise altering the legal factors that would allow such grants in the future.  But the BIA has simply been dismissing such claims on the grounds that Sessions had rejected them, without undertaking the individualized analysis required in such cases.  As a result, the circuit courts, and not the BIA, will likely decide the propriety and impact of Sessions’s decision.

My final note concerning A-B- is that while the case was still pending before him, Sessions stated in a radio interview in Arizona that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States.  Well that’s obviously false, but some judges have gone along with that.” Clearly, any judge making such a statement would have to recuse him or herself from the case. But Sessions, who never hid his bias against immigrants (among other groups), neither felt the need to be impartial, nor did the law require it of him.

Which makes Deputy Attorney General Rod Rosenstein’s recent remarks to a new class of immigration judges particularly worrisome.  Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the executive branch.  As such, Rosenstein stated, IJs must “follow lawful instructions from the Attorney General, and…share a duty to enforce the law.”  But shouldn’t judges who make such important decisions that sometimes involve life and death be “only judges?”

The incongruity is that the DOJ is an enforcement agency.  As such, it is not designed to be either neutral or transparent.  As already noted at length, it is headed by a Presidential political appointee, many of whose decisions and policies are guided by a purely political agenda.  As such, DOJ has never understood IJs, who need to be neutral, transparent, and insulated from political influence.

Although many in EOIR’s management hold titles that make them sound like judges, in fact, they see their role not as protectors of immigration judge independence, but rather as executive branch, DOJ managers whose main job is to appease their higher-ups in the Justice Department.  They view DHS not as one of the parties appearing before the agency, but rather as fellow executive-branch comrades. They take the same view of attorneys with OIL and the U.S. Attorneys Office who litigate immigration decisions in the federal courts. Significantly, they view the private bar and academia as being outside of this executive branch fold.

As my friend and fellow blogger, retired Immigration Judge Paul Schmidt recently wrote in a blog post, “what real court acts as an adjunct to the prosecutor’s office?” adding that such relationship is common in authoritarian, refugee-producing countries.

The last recent development I wish to mention that underscores this conflict was the treatment of a highly respected and fair immigration judge in Philadelphia, Steven Morley, who had issued a decision which was certified and reversed by Sessions, Matter of Castro-Tum.  Castro-Tum entered the U.S. as an unaccompanied minor.  After his release from ICE detention, he did not appear for his immigration court proceedings.  However, Judge Morley was concerned, based on his past experience, that ICE had provided the court with an inaccurate address for the youth, and felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing as required by law.

On remand, Judge Morley was directed by Sessions to proceed  according to the section of the law that governs in absentia orders.  Now, that section also requires a finding of proper notice on the respondent.  Judge Morley therefore proceeded properly and consistently with the AG’s order when he granted a short continuance for briefing on the issue of proper notice.  In response, the case was immediately removed by EOIR management from Judge Morley’s calendar. While a case would normally then be randomly reassigned to another judge in the same court, EOIR hand chose a management-level supervisory judge known for following the company line, who was sent to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in his absence.  Furthermore, Judge Morley was chastised by his supervisor, Assistant Chief Immigration Judge Jack Weil, who, according to a grievance filed by the IJ’s union, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing following the remand, and further falsely accused him of acting unprofessionally in purportedly criticizing the AG’s and BIA’s decisions.  86 similar cases were subsequently removed from Judge Morley’s calendar. Such action sent a very strong warning to the entire IJ corps (many of whom are new hires still in their two year probation period) of what to expect should they choose to act as “only judges” and not loyal employees of the Attorney General and executive branch.

The above inadequacies in the immigration court system have allowed the present administration to exploit it like never before in support of its own political narrative.  Examples of this include:

The Trump Administration’s early trumpeting of causing a “return to the rule of law” by increasing the number of removal orders its judges entered compared to the prior administration.  Early on, this was supposedly “accomplished” through what Paul Schmidt refers to as “ADR” or Aimless Docket Reshuffling. Judges in busy courts were told to continue two weeks worth of cases at a time (usually involving noncitizens represented by attorneys who had already waited years for their day in court) to instead travel to courts near the southern border to hear cases of largely unprepared and unrepresented, newly-arrived asylum seekers.  To repeat, in fact, the backlog has grown significantly in spite of such policies.

The administration also maintains a false narrative that Central American asylum seekers fleeing horrible gang and domestic violence are not really refugees, and in fact are dangerous criminals.  Through the AG’s issuance of Matter of A-B- and the compliant BIA’s reliance on that decision to give short shrift to such claims; through the detention of asylum seekers in remotely located detention centers, and the new policy of forcing some to wait in Mexico while their claims are adjudicated, thus severely limiting such asylum seekers access to counsel and their ability to meaningfully participate in compiling evidence and otherwise presenting their best claims; by indoctrinating new IJs that “these are not real claims,” the administration has artificially lowered the percentage of such claims that are being granted asylum, which thus furthers its narrative that “these are not real refugees.”

Furthermore, by forcing those attempting to apply legally to wait in Mexico under inhospitable and sometimes dangerous conditions for increasingly long periods of time, those who finally out of desperation cross the border without authorization are immediately arrested and tried criminally for the “crime” of crossing the border illegally, thus supporting the narrative that our country is being invaded by “criminals.”

The administration also maintains the narrative that immigrants should just be deported quickly, without due process and hearings before judges.  It is trying to accomplish this through the transformation of the immigration judge corps. By stripping IJs of much of what makes them independent judges, through the removal of necessary case management tools such as administrative closure, termination, and the ability to grant continuances; by imposing on them insulting completion quotas, and by making IJ training less about the proper application of the law and more about efficiency, many more experienced IJs are retiring sooner than they intended.  The administration is most happy to replace them with their hand-picked candidates who they expect to be made more compliant through the lengthy period of probation, the completion quotas, and an indoctrination of the type described above.

The result of all this was summarized in a detailed report of the ABA released last week.  The ABA report concluded that the immigration courts at present are “irredeemably dysfunctional” and on the verge of collapse.  There are those who believe that such collapse has been the goal all along, as it would allow the administration to replace the present system with one that is even more compliant and affords even less due process, perhaps something like the old special inquiry officer model.

What can be done?  A number of respected organizations, including the ABA, the Federal Bar Association, the American Immigration Lawyers Association, and of course the National Association of Immigration Judges have endorsed moving the immigration courts out of DOJ and making them an independent Article I court.

Article I status will likely not solve every problem, but for the reasons detailed above, it is an absolutely necessary starting point.  Article I is truly a non-partisan position. It’s first sponsor, Rep. McCollum, was a Republican; Sen. Gillibrand, who has recently shown interest in the issue, is a Democrat.  As the leader of a group of former immigration judges and BIA members, which includes members from across the ideological spectrum, I have found certain issues to be divisive within the group.  However, the issue of immigration judge independence has been unique in garnering universal support.

While it is too early to discuss the details of what such bill might contain, it is hoped that the BIA as presently constituted will be replaced by an immigration appeals court committed to independently and fairly interpreting the law, free of any fear of displeasing the Attorney General.  It’s members must be bipartisan, and appointed based on their knowledge of the law and their courage to apply it correctly. This would be a drastic change from the present group led by former Republican staffers still aiming to please their old bosses, and fleshed out with career DOJ bureaucrats who will loyally follow the party line.  I’ve always felt that choosing a former Article III judge to head an independent immigration court would immediately change the court’s priorities in the proper manner.

What role can we all play in making this happen?  At present, the most vocal advocates are immigration lawyers.  As such change would need to come from Congress, it bears noting that no elected official’s election hopes are likely to hinge on their winning the immigration lawyer vote, which amounts to probably a few thousand votes in total spread across many states and congressional districts.

However, we are all constituents of our senators and representatives. It is therefore incumbent on all of us to be advocates, and where possible, to join forces with other groups of constituents that might both share our interest in the issue and carry more sway with elected officials.

Speak out to anyone willing to listen to tell them that Article I is a non-partisan solution to the unrepairable mess that our present immigration court system has become.  In speaking to elected officials, try to find a reputable representative to endorse the concept.

Tell your own stories to make your points.  Because lawyers at heart are storytellers.

Explain that quotas and deadlines run contrary to judicial independence.

Ask for oversight hearings, to which groups such as the NAIJ, the ABA and AILA should be invited to the table.

Outside of the actual immigration judges and BIA, the following additional changes are needed.  First, ICE attorneys in the employ of DHS, i.e. the prosecutors in immigration court proceedings, must be allowed once again to offer prosecutorial discretion and to stipulate to grants in worthy cases, or to otherwise conference cases with private attorneys in an effort to streamline hearings.  I can’t think of any high volume court in which stipulations, plea agreements, and conferencing between the parties is not the common practice. Imagine what would happen to criminal courts if they were told that from now on, every jay walking ticket will require a full trial and appeal.

Prosecutorial discretion and some of these other streamlining techniques had finally become common practice in the immigration courts under the Obama administration.  It makes good sense and serves an important purpose in such an overburdened system to prioritize cases, and temporarily close out those cases that are not a priority. Most such cases involve noncitizens who are law-abiding, tax-paying individuals, some of whom have US citizen children.

Lastly, there are a large number of specially-trained asylum officers presently employed by DHS.  Some have suggested moving them as well into an independent court system in a supporting role, and providing the asylum officers with expanded jurisdiction to hear not only a broader array of asylum claims (thus removing those cases they grant from the actual judges’ dockets), but perhaps also allowing the asylum officers to adjudicate other classes of cases, such as cancellation of removal claims.

In closing, as summarized earlier, over several decades, immigration judges evolved from non-judicial adjudicators in the employ of an enforcement agency into administrative judges comprised of lawyers from a broad spectrum of ideological backgrounds who were allowed to exercise a good deal of independent judgment in a court setting.  And much of this positive development came from the “bottom up,” through the judges’ own collective efforts.

Because the final step of Article I status was never realized, actions by the Trump administration, which views independent judges as an unwanted obstacle to enforcing its own anti-immigration agenda, is attempting to roll back immigration judges to a state more closely resembling their INS special inquiry officer origins.

Although my focus has been on the present crisis under the Trump Administration, in fairness I want to state that the factors which set the stage for it built up over many years under both Democratic and Republican administrations.  Regardless of what administration follows this one, the immigration courts at best will almost certainly continue to suffer from the not-so-benign neglect that led us here, simply because immigration is such a controversial topic that problems are kicked down the road rather than resolved.

The reforms which Article I will bring will help insulate the system from unnecessary costs and delay caused by clogged dockets and unnecessary appeals prompted by a lack of trust in the system.  It will also help guarantee a clear funding stream with necessary resources not syphoned off by DOJ for other programs, and will safeguard the Circuit Courts from needless (and costly) appeals.

For all of these reasons, only an independent Article I court can sufficiently remove the threat of political manipulation, and again restore the faith in the immigration court’s fairness and impartiality that a democracy requires.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

 

 

Court Rebukes Youth Policy Shift

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Thanks Jeffrey my friend and colleague for telling it like it is and setting the record straight.

PWS

03-29-19

What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference,  and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

 

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Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges
Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution.  The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century.  America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef.  The mother cuts the ends off the roast before she puts it in the oven.  The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today.  Circumstances change.  Sometimes we need to reconsider assumptions and realign our practices to achieve our goals.  The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting.  But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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There were a few good things about Rosenstein’s presentation:

  • As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
  • He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
  • He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
  • He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
  • He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
  • He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

  • Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
  • He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
  • Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
  • DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
  • Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret  refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
  • Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
  • Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
  • Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
  • Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
  • Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
  • Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for  ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ.  He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

 

 

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
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AILA Doc. No. 19021900. (Posted 2/21/19)

30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
7
AILA Doc. No. 19021900. (Posted 2/21/19)

Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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

Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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

My Takeaways:

  • The DOJ politicos made the already bad situation immeasurably worse;
  • At no time did any of those supposedly  “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
  • Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
  • Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
  • No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
  • The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
  • Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
  • Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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

UPDATE: Molly’s article  was the “front page lead” in today’s print edition of the LA Times.  

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

 

JUDICIAL BRAIN DRAIN: As Outlaw Administration Attacks Due Process & Attempts To Institutionalize Xenophobic Bias, Experienced, Conscientious U.S. Immigration Judges Head For The Exits – Abandonment Of Scholarship, Fairness, Commitment To Due Process Threatens Entire U.S. Justice System!

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-policy-judge-resign-trump

Hamed Aleaziz reports for BuzzFeed News:

Being An Immigration Judge Was Their Dream. Under Trump, It Became Untenable.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge. “Morale has never, ever been lower.”

Posted on February 13, 2019, at 6:15 p.m. ET

Former immigration judge Rebecca Jamil in Fremont, California, on Dec. 28, 2018.

Constanza Hevia for BuzzFeed News

Former immigration judge Rebecca Jamil in Fremont, California, on Dec. 28, 2018.

SAN FRANCISCO — Rebecca Jamil was sitting in a nondescript hotel ballroom in suburban Virginia when she realized that her dream job — being an immigration judge — was no longer tenable. It was June 11, 2018, and then–attorney general Jeff Sessions, her boss, was speaking to a room packed with immigration judges, running through his list of usual complaints over what was, in his estimation, a broken asylum system.

Toward the end of the speech, Sessions let slip some big news: He had decided whether domestic abuse and gang victims could be granted asylum in the US. Advocates, attorneys, and judges had been waiting months to see what Sessions, who in his role as attorney general had the power to review cases, would do. After all, it would determine the fate of thousands of asylum-seekers, many fleeing dangerous situations in Central America.

Sessions didn’t reveal to the room the details of his ruling but Jamil, based in San Francisco since she was appointed in 2016, learned later that day that the attorney general had decided to dramatically restrict asylum protections for domestic abuse victims.

“I’d seen the faces of these families,” the 43-year-old judge said. “They weren’t abstractions to me.”

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a US immigration office with numerous courtrooms in San Francisco.

Eric Risberg / AP

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a US immigration office with numerous courtrooms in San Francisco.

Jamil, a mother of two young daughters, had been shaken by the images and sounds that came as a result of the Trump administration’s policy to separate families at the border. As a judge who oversaw primarily cases of women and children fleeing abuse and dangers abroad, this was the last straw.

Soon after, she stepped down from the court.

“I can’t do this anymore,” she told friends. “I felt that I couldn’t be ‘Rebecca Jamil, representative of the attorney general’ while these things were going on.”

In many ways, her resignation underscores the tenuous position of immigration judges, who are overseen by the attorney general and susceptible to the shifting winds of each administration. To avoid potential conflicts, the union that represents the judges has long called for its court to be an independent body, separate from the Department of Justice.

The Trump administration has undertaken a monumental overhaul of the way immigration judges, which total around 400 across the country, work: placing quotas on the number of cases they should complete every year, ending their ability to indefinitely suspend certain cases, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets.

In the meantime, the case backlog has jumped to more than 800,000 under the administration and wait times have continued to skyrocket to hundreds of days.

The quotas in particular have made judges feel as if they were cogs in a deportation machine, as opposed to neutral arbiters given time to thoughtfully analyze the merits of each case.

“The job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy,” said Ashley Tabaddor, an immigration judge who heads the National Association of Immigration Judges, a union representing around 350 judges.

And it’s not just Jamil who has departed because of the massive changes to the court undertaken by the Trump administration, according to observers within the Department of Justice and those on the outside. While some, like Jamil, have resigned, others have retired early in large part because of the policies instituted under Trump, they said.

For those remaining at the immigration court, the mood is bleak.

Attorney General Jeff Sessions speaks during a news conference on Oct. 16, 2018.

Justin Sullivan / Getty Images

Attorney General Jeff Sessions speaks during a news conference on Oct. 16, 2018.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge who declined to be named. “Morale has never, ever been lower.”

Another Justice Department official, who was not authorized to speak on the record, told BuzzFeed News, “It is exhausting when you feel undervalued by the people at the top of your organization, especially when they are motivated by partisanship and have not spent their careers doing the job that you do.”

Tabaddor, the head of the union, said that her group has noticed a higher rate of retirements and resignations than in the past because of the way judges have been treated under Trump.

Some have been bold in their timing. John Richardson, a former immigration judge in Phoenix, stepped down on Sep. 30, 2018 — the day before the administration instituted a quota for the number of cases to be completed by judges.

“The timing of my retirement was a direct result of the draconian policies of the Administration, the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process, and blaming [judges] for the immigration crisis caused by decades of neglect and under funding of the Immigration Courts,” he said in a statement to BuzzFeed News.

Another judge who resigned from the bench in September told staff members in a goodbye email, “I know things are getting difficult for you at [the Executive Office for Immigration Review], but I believe all you will ‘ride through the storm’ and ‘come out with a smile.’”

There have long been work challenges for immigration judges, including heavy caseloads and assignments, leading to comparatively high burnout rates. Justice Department officials told BuzzFeed News that concerns over retirements were nothing new.

According to the agency, from the beginning of fiscal year 2014 through Feb. 12, 2019, 94 immigration judges have retired, separated, or died. More than a third of those judges, 32, have left since Oct. 1, 2017. The agency does not track why judges leave their positions.

To those within the court and others who have recently retired, the situation has worsened to an unprecedented level. Richardson, the former judge in Phoenix, said he would have continued presiding over immigration cases if the status quo had remained.

“Yes, I was 75 years old with over 50 years of honorable federal service with the Department of Defense and the Department of Justice, but had no plans for retirement as long as I was treated with respect, appreciated, and provided adequate support,” he said. “I had 28 years as an IJ and very much enjoyed my job, even with the poor funding and lack of support by Congress and the White House during that 28 years.”

Jeff Chase, a former immigration judge who stepped down years ago and who speaks regularly with others who’ve left the bench, was blunt in his characterization.

“The fastest growth industry is former immigration judges,” Chase said. Those still on the bench have told him, “It’s horrible. Whatever you think it is, it is much, much worse.”

In the meantime, the Trump administration has hired more than 100 judges to not only fill the vacancies of those who’ve retired but to add numbers to the bench. It’s a rehauling of the courts that could “have a drastic impact,” according to Chase.

Many of the judges retiring in recent months are experienced jurists, hired by the Clinton administration in the mid to late ’90s, he said. These judges, Chase said, were more willing to push back on claims made in court by US Immigration and Customs Enforcement or to allow immigrants extended time to make their cases in what could otherwise be a rushed procedure.

In their place, Chase said, are judges hired by the new administration with case completion quotas, a two-year probation period, and a mandate to avoid showing sympathy for the people appearing before them.

“Even if it doesn’t show up on the sheet, just the level of humanity, that makes a huge difference — that’s what this administration is trying to remove from the immigration judge corps,” he said.

Rebecca Jamil holds her immigration judge certificate.

Constanza Hevia for BuzzFeed News

Rebecca Jamil holds her immigration judge certificate.

For her part, Jamil wanted to become an immigration judge from the earliest moments of her legal career. After working as a staff attorney at the 9th Circuit US Court of Appeals, she joined the government as a prosecutor with ICE in 2011, where she was able to use discretion to focus deportation efforts on those with serious criminal backgrounds. Under the Trump administration, ICE attorneys have been told that nearly all undocumented immigrants are priorities for deportation.

In 2014, Jamil took a chance to fulfill her dream: She applied to become an immigration judge. It was a 17-month process, full of drawn-out interviews in Washington, DC, but finally, in 2015 she received a phone call informing her that she got the job.

“I thought, and I must have told most people I know, that this is the last job that I would ever have. It’s all I wanted to do,” she said.

Jamil dedicated herself to the exhausting career. She oversaw a docket made up primarily of families and regularly heard cases in which women and children applied for asylum based on abuse that they had experienced by partners and family members abroad.

Day in and day out, Jamil heard intense testimony of physical and sexual violence against women and children.

“You’re sitting in a windowless room and people tell you the very worst parts of their life and you have to decide if it is enough to stay in the US,” she said. “That is very tiring day after day to be the person who makes that decision.”

Then, under the Trump administration, things started to change. In 2018, Sessions instituted a new policy, severely limiting when judges could suspend certain cases. Suddenly, her docket expanded and she wasn’t allowed to decide which cases deserved to remain in court and which didn’t.

Jamil and fellow immigration judges were in attendance at the Virginia conference where Sessions spoke for annual trainings on courtroom procedure. The year before, jurists heard substantive legal updates and trainings on bias in the courtroom.

This version of the training, however, felt different.

“The entire conference was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster,” Jamil said. “That is not what I saw my job as an immigration judge to be. I was not trained to do that.”

Soon after she returned home, Jamil put in her resignation. Her colleagues fretted, probing her about whether she had considered the type of judge that could fill her spot on the bench and the impact that could have.

She didn’t have an answer, but she knew that she couldn’t do it any longer.

“Family separations; Sessions making his own case law on asylum; when we could continue cases — I could no longer sit below the seal of the Department of Justice and represent the Department of Justice at that point,” Jamil said. “They just chipped away at our authority on a daily basis. It felt like we weren’t really judges. It was frustrating and demoralizing.”

A former colleague, Laura Ramirez, worked for years as an immigration judge in San Francisco. In December, she retired at the earliest date possible, five days after she turned 60.

The changes put in place by the Trump administration, especially the case quotas, and the politicization of her job, became too much to handle.

The loss of judges like Jamil and others could be immeasurable to both immigrants and Department of Homeland Security attorneys, Ramirez said.

“For the system of justice, there’s these highly qualified, fair, thoughtful people who are being squeezed out of the system for political reasons, basically,” she said. “If people like her are squeezed out, it’s a loss to people who appear before her. The system can’t be fair if good people like her are pushed out.”

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Forcing the “best, brightest, and fairest” out. Reinforcing “worst practices.” Enabling judges with well-established records of anti-asylum, nationality-based, and misogynistic bias. Attacking those private attorneys who steadfastly defended legal and Constitutional rights that were being systematically undermined by the Administration. Blaming others for his own incompetence and lack of scholarship. That’s what the “Sessions program” was all about.

The only good news: folks like Judge Jamil, Judge Ramirez, Judge Richardson, and Judge Chase are now part of the ever-growing “Our Gang” of retired Immigraton Judges helping others to fight the injustices and destruction of Due Process being pushed by the Trump Administration and a DOJ that has abandoned its mission in favor of a White Nationalist political agenda. Our voices are being heard in support of the efforts of the “New Due Process Army.”

And, while I doubt that anyone outside of Trump and Miller can match the viscous lies, racism, and knowingly false narratives of Sessions, I wouldn’t expect much improvement under Barr. Barr thought Sessions was “the greatest thing since sliced bread.” That, more than the Mueller investigation, should have caused all Democrats to vote against his confirmation. He’ll just “lose” some of the overtly racist and inflammatory lingo of the White Nationalist restrictionists and attack immigrants on the basis of bogus “strict enforcement” platitudes.

Every American who believes in our Constitution and thinks that America is different from the “Banana Republics” we often criticize will be threatened by this development. Malicious harm to the most vulnerable among us is harm to all; and the collapse of one of the “building blocks” at the “retail level” of the American justice system will adversely affect everybody’s ability to get justice with fairness and impartiality.

Many of us don’t think we will need fair, independent, and impartial courts until we do. Once the Trump Administration destroys them, they won’t easily be rebuilt.

Who will defend your rights when the time comes if you stand by and watch the rights of others being trampled?

PWS

02-14-19

 

 

WASHPOST: DON’T SEND TROOPS, GUNS, & MONEY – SEND JUDGES!

https://www.washingtonpost.com/opinions/dont-send-troops-to-the-border-send-judges/2018/11/02/cd54d0f0-deda-11e8-85df-7a6b4d25cfbb_story.html

The Post Editorial Board writes:

PRESIDENT TRUMP has based his midterm election campaign on the specter of an “invasion” by immigrants marching from Central America to the southern border. His demagoguery is disgusting and irresponsible. But there is a real problem of migrants — one that his administration is failing to address.

Many people are crossing the border with their children and applying for asylum, overwhelming existing mechanisms for dealing with asylum seekers. They are feeding what the president calls a “catch-and-release” revolving door for migrants freed as they await hearings to adjudicate their cases, and contributing to a backlog of some 750,000 cases in immigration courts.

A rational response would be to add substantially to the approximately 350 immigration judges, who cannot handle the tens of thousands of asylum claims flooding the immigration courts annually. The administration this year hired a few dozen new judges, a fraction of what is required. As the caseload has more than quadrupled since 2006, the number of judges has not even doubled, according to congressional testimony in April by Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges.

Despite that, Mr. Trump has sneered at the idea of hiring more, even after aides pressed him to do so. “Who are these people?” he raged, before suggesting darkly that adding many new judges would somehow corrupt the system. “Now can you imagine the graft that must take place?” he said.

Granted, the hiring could be challenging, in vetting and cost. But any major challenge involves scaling up resources and personnel, and it’s hard to see why that’s beyond the government’s capabilities.

On the other hand, maybe Mr. Trump prefers having an issue to a solution. He has made it clear he believes the immigration question propelled him into the White House. Now, by ramping up his inflammatory rhetoric, and by advancing over-the-top measures such as sending thousands of troops to the border to fulfill a mission for which they are not trained — Congress has barred troops from law enforcement duties — it seems apparent Mr. Trump has opted for crisis instead of constructive improvements to what he rightly calls a broken system. Instead of deploying thousands of troops, why not hire hundreds of judges?

****************************************
Certainly on the right track here!
But here’s what really needs to happen to address the issue in a rational way:
  • Send more Asylum Officers to do credible fear interviews at the border;
  • Send enough private attorneys to represent all arriving migrants before both the Asylum Office and the Immigration Courts;
  • Allow Asylum Officers to grant temporary withholding of removal under the Convention Against Torture (“CAT”) to the many applicants who have a probability of torture upon return, which clearly happens with “government acquiescence” — or in many cases actual participation or connivance — in the Northern Triangle;
  • Put the asylum claims of those granted CAT withholding on the “back burner” (thus keeping them from clogging the Immigration Courts) while working with the UNHCR and other counties in the Hemisphere (including, of course Mexico and Canada) on a more durable solution for those currently fleeing the Northern Triangle;
  • Otherwise, individuals who pass credible fear should be released on minimal bonds and allowed to go to locations where they will be represented by pro bono lawyers (thus avoiding the money wasted on “tent cities” and other types of expensive and arguably illegal detention) — contrary to the Trump Administration lies, almost all represented asylum applicants show up faithfully for their Immigration Court Hearings;
  • If the Administration wants to “prioritize” the cases of recent arrivals before the Immigration Courts, this can and should be done without creating more “Aimless Docket Reshuffling.” Not “rocket science.” Here’s how:
    • Hundreds of thousands of those now unnecessarily clogging the Immigration Court dockets are long-time residents eligible to apply for “Cancellation of Removal for Non-Lawful Permanent Residents.”  Take those with no serious criminal records off the Immigration Court docket and send them to USCIS Adjudications for initial processing. No rush, since only 4,000 “numbers” are available each year for grants;
    • Those granted can be put in a line for green card numbers maintained by USCIS;
    • Those denied who have committed serious crimes should be referred back to the Immigration Courts;
    • For others who don’t qualify for cancellation of removal, the Administration should sponsor bipartisan legislation to provide legal status to such long-term residents. With Administration support, such legislation clearly could pass both Houses and be enacted into law.
  • The Immigration Courts could then return to real priorities: detained cases; cases of recently arrived individuals with or without asylum claims; cases of immigrants who have committed crimes; and cases of other individuals who don’t fit within our legal system, as properly administered.
  • Sure, this doesn’t match the “White Nationalist game plan.” But, it’s a practical, legal solution that would be good for immigration enforcement, the legal system, and the country as a whole. And, until the final step of legalization of long-term residents, it can be achieved under the current law.
  • And, I’ll bet you the overall cost would be much less than some of the “designed to fail” and perhaps illegal schemes now being pursued by the Administration. That’s particularly true because applications to USCIS and legalization programs actually “pay their own way” through application fees — perhaps even turning a slight profit for the Government.

PWS

11-03-18

 

PRISCILA ALVAREZ @ THE ATLANTIC: Sessions’s Influence Over Justice In The U.S. Immigration Courts Will Continue Long After His Departure!

https://www.theatlantic.com/politics/archive/2018/10/jeff-sessions-carrying-out-trumps-immigration-agenda/573151/

Priscilla writes in The Atlantic:

Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of  the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.

Why?

That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”

The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”

The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.

This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.

“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”

Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.

It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.

Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.

“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”

Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.

Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.

Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.

The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.

The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.

“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.

Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.

In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.

And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.

This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.

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

While immigration advocates might look forward to the day of Session’s departure from DOJ just as much as Donald Trump does, in the case of immigration the wonton damage and carnage he has inflicted on our justice system, particularly in the area of immigration, won’t easily be repaired. And, the repairs can’t even begin until after we get “regime change.”

PWS

10-16-18

 

DOJ SEEKING BIA JUDGES TO WANDER THE ARIZONA DESERT IN SEARCH OF FINAL ORDERS OF DEPORTATION?

The latest DOJ Job Announcement for Appellate Immigration Judges (“BIA Members”) contains some “head scratchers:”

https://www.usajobs.gov/GetJob/ViewDetails/511705900#

  • 6 vacancies;
  • In 4 locations;
  • All in Arizona.

NOTE: The Chairman, Vice Chair,  and the other 13 Board Members/Appellate Immigration Judges are located in Falls Church, VA, along with all of the BIA’s existing staff.

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

At one time, this might have been one of the “premier” jobs in the DOJ. But, with “One-Judge Panels,” Performance Quotas, Sessions setting all the important precedents, and a constant stream of reversals and criticisms from the Article III’s for “haste makes waste” decision-making, successful candidates had better bring their “DEPORT” rubber stamps with them.

PWS

09-30-18

 

 

GONZO’S WORLD: HE FIDDLES AS ROME BURNS! — Threats To Judges, Xenophobia, Racism, Cutting Corners, Dissing Respondents & Their Lawyers, Bogus Numbers, Aimlessly Adding Bodies Fail To Stem Tide Of Backlogged Cases In An Obviously Broken System — When Will Congress &/Or The Article IIIs Do Their Jobs By Restoring Due Process, Impartiality, & Competent, Apolitical Court Management To This Sorry Caricature Of A Court System?

Here’s the latest from TRAC:

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. In August 2018, Immigration Courts remained overwhelmed with record numbers of cases awaiting decision. As of August 31, 2018, the number had reached 764,561. In July, the number of cases awaiting decision was 746,049 cases. This is a significant increase – up 41 percent – compared to the 542,411 cases pending at the end of January 2017, when President Trump took office.

California, Texas, and New York have the largest backlogs in the nation at 142,260, 112,733, and 103,054 pending caseloads respectively. While California is the state with the most pending cases, New York City’s immigration court topped the list of immigration courts with highest number at 99,919 pending cases at the end of August.

To view further details see TRAC’s immigration court backlog tool:

http://trac.syr.edu/phptools/immigration/court_backlog/

In addition to these most recent overall figures, TRAC continues to offer free monthly reports on selected government agencies such as the FBI, ATF, DHS and the IRS. TRAC’s reports also monitor program categories such as official corruption, drugs, weapons, white collar crime and terrorism. For the latest information on prosecutions and convictions through July 2018, go to:

http://trac.syr.edu/tracreports/bulletins/

Even more detailed criminal enforcement information for the period from FY 1986 through August 2018 is available to TRACFed subscribers via the Express and Going Deeper tools. Go to http://tracfed.syr.edu for more information. Customized reports for a specific agency, district, program, lead charge or judge are available via the TRAC Data Interpreter, either as part of a TRACFed subscription or on a per-report basis. Go to http://trac.syr.edu/interpreter to start.

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II   
Syracuse, NY 13244-2100
315-443-3563

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

At approximately 20,000 more backlogged cases per month, the “Gonzo-ized” version of the US Immigration Courts are on track to jack the backlog up to 1 million by the end of FY 2019! Talk about self-inflicted, totally unnecessary chaos!

Hiring more new Immigration Judges won’t solve the problem because 1) if they do the job right, they will be slow and deliberative, 2) if they are slow, they will be fired, 3) but if they do it “Gonzo’s way” and give Due Process a pass, many of their cases will be sent back by the Courts of Appeals, adding to the mess.

Gonzo’s recent “My Way or the Highway” speech to new IJs where he unethically urged them to violate their oaths of office by ignoring relevant humanitarian factors in asylum cases (which actually are supposed to be humanitarian adjudications) and just crank out more removal orders to carry out the Administration’s White Nationalist agenda is a prime example of why more judicial bodies can’t solve the problem without a complete overhaul of the system to refocus it on Due Process — and only Due Process.

Someday, the Immigration Courts will become independent of the DOJ. That should include a professionally-administered, transparent, merit-based, judicial selection and retention system with provision for meaningful public input. (Such systems now are used for selection and retention of US Bankruptcy Judges and US Magistrate Judges.) When that happens, those Immigration Judges who “went along to get along” with Gonzo’s xenophobic, anti-immigrant, ignore Due Process system might be challenged to explain why they are best qualified to be retained in a new system that requires fair, impartial, and scholarly judges.

This court system can be fixed, but not by the likes of Gonzo Apocalypto; also, not without giving the Immigration Judges back authority over their dockets and leverage to rein in a totally undisciplined, irresponsible, unprofessional, and out of control ICE. (Responsible, professional, practical, humane leadership at DHS and ICE is also a key ingredient for a well-functioning and efficient court system.)

PWS

09-27-18

 

 

 

 

NOTE TO NEW US IMMIGRATION JUDGES: YOU WOULD DO WELL TO IGNORE SESSIONS’S FALSE NARRATIVE & ADDRESS THE REAL PROBLEMS PLAGUING OUR US IMMIGRATION COURTS – Lack of Due Process, Abusive Detention, Some Biased Colleagues, Too Few Lawyers, Inconsistent Decisions, Far Too Many Denials Of Legitimate Refugees – “But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.”

From LexisNexis Immigraton Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/a-pro-bono-asylum-lawyer-responds-to-the-latest-attack-from-a-g-sessions

A Pro Bono Asylum Lawyer Responds to the Latest Attack from A.G. Sessions

Expecting Asylum-Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center

Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.

Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.

It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.

Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.

Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.

Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.

During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.

But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.

We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but seeTapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.

SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”

(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)

Photos from my trip to Folkston, GA:

The Folkston ICE Processing Center.

Downtown Folkston, GA.

Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).

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Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.

As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.

Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.

But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?

Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”

Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?

How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?

Your choice. Choose wisely. Good luck. Do great things!

PWS

09-11-18

 

GONZO’S WORLD: WHITE NATIONALIST AG MAKES VICIOUS UNFOUNDED ATTACK ON REFUGEES & THEIR ATTORNEYS THE CENTERPIECE OF HIS SPEECH TO LARGEST CLASS OF INCOMING U.S. IMMIGRATION JUDGES — “Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests.”

Sessions to immigration judges: Immigrants’ attorneys like ‘water seeping’ around law

By Tal Kopan, CNN

Attorney General Jeff Sessions told a new group of immigration judges Monday that it is their job to “restore the rule of law” to the immigration system over the contrary efforts of the lawyers who represent immigrants.

The remarks at the training of the largest-ever class of new immigration judges implied that the judges were on the same team as the Trump administration, and that immigrants and their attorneys were trying to undermine their efforts.

“Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests,” Sessions said, adding the same happens in criminal courts. “And we understand that. Their duty, however, is not uphold the integrity of the act. That’s our duty.”

Sessions noted that “of course” the system “must always respect the rights of aliens” in the courts. But he also warned the judges of “fake claims.”

“Just as we defend immigrant legal rights, we reject unjustified and sometimes fake claims,” Sessions said. “The law is never serviced when deceit is rewarded so that the fundamental principles of the law are defeated.”

The comments came in the context of Sessions’ repeated moves to exert his unique authority over the immigration courts, a separate legal system for immigrants that is entirely run by the Justice Department.

Sessions approves every judge hired and can instruct them on how to interpret law, and thus decide cases, as well as how to manage cases. He has used that authority multiple times in the past year, including issuing a sweeping ruling that will substantially narrow the types of cases that qualify for asylum protections in the US. Those decisions overrode the evolution of years of immigration judges’ and the immigration appellate board’s decisions.

Sessions reminded the new judges of that authority and those decisions in his remarks, saying he believes they are “correct” and “prudent” interpretations of the law that “restores” them to the original intent.

More: http://www.cnn.com/2018/09/10/politics/sessions-immigration-judges/index.html

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Another totally inappropriate and unethical effort by Sessions to insure that migrants, particularly asylum seekers, receive neither fair consideration nor Due Process from U.S. Immigration Judges in connection with their, in many instances, very compelling cases for protection.

Let’s shine a little light of truth on the Sessions’s dark myth-spinning:

  • As recently as 2012, the majority of asylum applicants who received decisions on the merits of their claims in Immigration Court were granted protection;
  • Conditions in most “sending countries” — particularly those in the Northern Triangle —  have gotten worse rather than better;
  • There is no reasonable explanation for the large drop in approvals in recent years other than bias against asylum seekers;
  • Even after Sessions took over, 30% of those who get merits determinations won their cases;
  • The success rate is higher for those released from detention and given fair access to counsel;
  • Most detained migrants, particularly those intentionally detained in substandard conditions in obscure locations, do not have reasonable access to counsel;
  • Most attorneys representing detained asylum seekers serve pro bono or for minimal compensation (particularly in relation to the amount of time and effort required to prepare and present an asylum case in detention);
  • Detention of asylum seekers simply to deter them from coming is illegal;
  • Separation of families is a deterrent is also illegal;
  • Neither detention nor “zero tolerance” prosecutions have been shown to have a material impact on the flow of refugees to our Southern Border;
  • Sessions has provided no evidence of any widespread fraud in asylum applications by refugees from the Northern Triangle;
  • The UN High Commissioner for Refugees (“UNHCR”), the leading interpreter of refugee and asylum protections, has consistently criticized the US’s overly restrictive approach to asylum adjudication;
  • Article III U.S. Courts continue to be critical of both the unlawful policies being promoted by Sessions and the fundamental errors still being made by the BIA and some Immigration Judges in analyzing asylum cases and claims under the Convention Against Torture;
  • According to the US Supreme Court, a chance of harm as low as 10% can satisfy the generous legal standard for asylum;
  • According to the UNHCR, asylum applicants should be given the “benefit of the doubt;”
  • Most of those who fail to get asylum, like the abused woman denied protection by Sessions in Matter of A-B-, face life threatening situations in their home countries — we have merely made a conscious choice not to offer them asylum or some alternative form of life-saving protection.

As Sessions sees that his time as Attorney General will likely come to an end before the end of this year, he is doubling down on his White Nationalist, xenophobic, racist, restrictionist, lawless agenda. He wants to inflict as much damage on migrants, refugees, women, and people of color as he can before being relegated to his former role as a rightist wing-nut. He also seeks to convince the Immigration Judges that they are not independent juridical officials but mere highly paid enforcement agents with an obligation to deport as many folks as possible in support of the President’s agenda.

I do agree with Sessions, however, that the newly-minted Immigration Judges have a tremendously difficult job. If they adopt his philosophy, they are likely to violate their oaths to uphold the Constitution and laws of the US and to wrongly return individuals to death-threatening situations. On the other hand, if they carefully and fairly follow the law and give full consideration to the facts, they will be compelled to grant protection in many cases, thus potentially putting them on EOIR’s “hit list.” (Basically, new US Immigration Judges, even those with many years of civil service, can be “fired at will” by EOIR during their first two years of  “probation” as judges.)

The only solution is an independent Article I Immigration Court that will guarantee that someone as totally unqualified as Sessions can never again impose his personal will and bigoted, anti-Due-Process views on what is supposed to be a fair and impartial court system.

PWS

09-10-18

 

 

 

 

 

EOIR ANNOUNCES 23 NEW IMMIGRATION JUDGE APPOINTMENTS – TREND OF APPOINTING LARGELY FROM GOVERNMENT BACKGROUNDS CONTINUES!

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NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy
5107 Leesburg Pike
Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365PAO.EOIR@usdoj.gov @DOJ_EOIR

www.justice.gov/eoir

Aug. 15, 2018

Executive Office for Immigration Review Swears in 23 Immigration Judges

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Stuart D. Alcorn, Immigration Judge, Pearsall Immigration Court

Attorney General Jeff Sessions appointed Stuart D. Alcorn to begin hearing cases in August 2018. Judge Alcorn earned a Bachelor of Arts degree in 1994 from the University of Southern Mississippi and a Juris Doctor in 2004 from the Thurgood Marshall School of Law at Texas Southern University. From 2008 to 2018, he served as assistant chief counsel for Immigration and Customs Enforcement, Department of Homeland Security in San Antonio, Texas. From 2008 to 2017, he also served as a military defense attorney in the Judge Advocate General’s (JAG) Corps, U.S. Army Reserve. From 2005 to 2008, he was a military prosecutor and command judge advocate in the JAG Corps at Fort Benning, Ga. In addition to military duties, during 2005 to 2008, he was special assistant U.S. attorney in the U.S. Attorney’s Office in Columbus, Ga. In 2004, he was a law clerk for Ron Woods’ legal practice in Houston. From 2002 to 2004, he was a student clerk in the U.S. Attorney’s Office in Houston. Judge Alcorn is a member of the State Bar of Texas.

Robert A. Fellrath, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Robert A. Fellrath to begin hearing cases in August 2018. Judge Fellrath earned a Bachelor of Arts degree in 1996 and a Juris Doctor in 1999, both from the University of Notre Dame. From 2008 to 2018, he was assistant U.S. attorney for the U.S. Attorney’s Office in Tucson, Ariz. From 2007 to 2008, he was assistant federal public defender for the Office of the Federal Public Defender in Burlington, Vt. From 2000 to 2018, he served in different roles, locations, and increasing levels of seniority with the Judge Advocate General’s Corps, U.S. Army, in both active and reserve duty. These assignments were in San Antonio, Texas; Kaiserslautern, Germany; Fort Hood, Texas; and Fort Huachuca, Ariz. Judge Fellrath is a member of the State Bar of Michigan.

Kathleen French, Immigration Judge, Otero Immigration Court

Attorney General Jeff Sessions appointed Kathleen French to begin hearing cases in August 2018. Judge French earned a Bachelor of Science degree in 1982 from the U.S. Coast Guard Academy and a Juris Doctor in 1997 from George Mason University. From 2000 to 2018, she

Communications and Legislative Affairs Division

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was assistant chief counsel and deputy chief counsel with the Immigration and Customs Enforcement, Department of Homeland Security in several locations: Denver; Lumpkin, Ga.; and Miami, Orlando, and Tampa, Fla. From 1999 to 2000, she was a judicial law clerk (JLC) with the Executive Office for Immigration Review, Department of Justice in Miami. From 1997 to 1999, she was a JLC with the Third District Court of Appeal, also in Miami. From 1998 to 2013, she served in several reserve-duty roles with the Judge Advocate General’s Corps, U.S. Army. From 1994 to 1982, she served on active duty in the U.S. Coast Guard as a shipboard law enforcement officer. Judge French is a member of The Florida Bar.

Daniel B. Gilbert, Immigration Judge, Harlingen Immigration Court

Attorney General Jeff Sessions appointed Daniel B. Gilbert to begin hearing cases in August 2018. Judge Gilbert earned a Bachelor of Talmudic Law degree in 2004 from the New Israel Rabbinical College and a Juris Doctor in 2008 from the Benjamin N. Cardozo School of Law. He was assistant chief counsel with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security from 2012 to 2016 in Harlingen, Texas, and from 2016 to 2018 in Baltimore. From 2009 to 2011, he was a staff attorney with the U.S. Court of Appeals for the Second Circuit in New York. In 2007, he was a student clerk with the U.S. District Court in Newark, N.J., as well as a judicial intern with the New York State Supreme Court of Kings County in Brooklyn, N.Y. Judge Gilbert is a member of the New York and New Jersey State Bars.

Lena Golovnin, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Lena Golovnin to begin hearing cases in August 2018. Judge Golovnin earned a Bachelor of Arts degree in 2002 from Hunter College and a Juris Doctor in 2008 from the Thomas M. Cooley Law School. From 2010 to 2018, she was assistant chief counsel for the Office of the Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security in New York, N.Y. From 2009 to 2010, she was attorney advisor for the Executive Office for Immigration Review (EOIR), Department of Justice (DOJ), also in New York, N.Y. From 2008 to 2009, she was a judicial law clerk and later attorney advisor for EOIR, DOJ in San Antonio, Texas. Judge Golovnin is a member of the New York State Bar and the State Bar of Michigan.

Cynthia Gordon, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Cynthia Gordon to begin hearing cases in August 2018. Judge Gordon earned a Bachelor of Arts degree in 1990 from Hamilton College and a Juris Doctor in 1993 from Cornell Law School. From 2007 to 2018, she was assistant chief counsel in the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security in New York, N.Y. From 2001 to 2007, she was special assistant attorney general in the New York State Attorney General’s Office in New York City. From 1994 to 2001, she was assistant district attorney in the New York Country District Attorney’s Office, also in New York, N.Y. From 1993 to 1994, she was a judicial clerk in the Superior Court of New

Communications and Legislative Affairs Division

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Jersey in Cape May, N.J. Judge Gordon is a member of the New York and New Jersey State Bars.

Nathan L. Herbert, Immigration Judge, El Paso Immigration Court

Attorney General Jeff Sessions appointed Nathan L. Herbert to begin hearing cases in August 2018. Judge Herbert earned a Bachelor of Science degree in 2003 from Western Michigan University and a Juris Doctor in 2008 from the Michigan State University College of Law. From 2015 to 2018, he was deputy chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in San Antonio, Texas. From 2009 to 2015, he was an assistant chief counsel, Office of Chief Counsel, ICE, DHS, in Denver. From 2008 to 2009, he was attorney advisor for the Executive Office for Immigration Review, Department of Justice, also in Denver. Judge Herbert is a member of the Colorado Bar.

Howard C. Hom, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Howard C. Hom to begin hearing cases in August 2018. Judge Hom received a Bachelor of Arts degree in 1973 from the University of California, Los Angeles, and a Juris Doctor in 1976from Loyola Law School. In 2018, he served as an administrative law judge (ALJ) for the California Unemployment Insurance Appeals Board. From 2016 to 2018, he was a self-employed attorney specializing in immigration and nationality law. From 2009 to 2016, he was ALJ for the State of California. From 1981 to 2009, he was an attorney in private practice, in Los Angeles. From 1995 to 2008, he was an adjunct professor in immigration law at the Whittier Law School, Los Angeles. From 1976 to 1981, he was a general and trial attorney with the former Immigration and Naturalization Service, Department of Justice in Los Angeles. Judge Hom is a member of the State Bar of California.

Natalie B. Huddleston, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Natalie B. Huddleston to begin hearing cases in August 2018. Judge Huddleston earned a Bachelor of Arts degree in 2001 and a Juris Doctor in 2004, both from the University of Notre Dame. From 2014 to 2018, she was assistant U.S. attorney in Phoenix. From 2013 to 2014, she was deputy county attorney with the Pinal County Attorney’s Office in Florence, Ariz. From 2008 to 2013, she was assistant attorney general with the Office of the Arizona Attorney General in Phoenix. From 2004 to 2008, she was deputy county attorney with the Maricopa County Attorney’s Office, also in Phoenix. Judge Huddleston is a member of the State Bar of Arizona.

David C. Koelsch, Immigration Judge, Baltimore Immigration Court

Attorney General Jeff Sessions appointed David C. Koelsch to begin hearing cases in August 2018. Judge Koelsch earned a Bachelor of Arts degree in 1988 from Michigan State University and a Juris Doctor in 1994from Catholic University. From 2017 to 2018, he was a supervisory asylum officer with U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), in Arlington, Va. From 2015 to 2017, he was an appeals officer with

Communications and Legislative Affairs Division

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the Administrative Appeals Office, USCIS, DHS. From 2002 to 2015, he was a professor and director of the Immigration Law Clinic at the University of Detroit Mercy School of Law. From 2000 to 2005, he was legal director of Freedom House. From 1998 to 2000, he was associate attorney with Dykema PLLC. From 1996 to 1998, he was associate attorney with Hopkins & Sutter. From 1995 to 1996, he was a law clerk for the Alaska Superior Court. He is a member of the Michigan State Bar.

W. Scott Laragy, Immigration Judge, Oakdale Immigration Court

Attorney General Jeff Sessions appointed W. Scott Laragy to begin hearing cases in August 2018. Judge Laragy earned a Bachelor of Arts degree in 1991 and a Juris Doctor in 1994, both from Loyola University New Orleans. He has served in the Judge Advocate General’s (JAG) Corps for the U.S. Navy since 1995, first on active duty until 2007, and is currently serving in the reserves. From 2017 to 2018, he was counsel to the director in the Executive Office for United States Attorneys (EOUSA), Department of Justice (DOJ), in Washington, D.C. From 2012 to 2017, he was legislative counsel for the EOUSA, DOJ. From 2007 to 2012, he was assistant U.S. attorney for the U.S. Attorney’s Office in New Orleans. Judge Laragy is a member of the Louisiana State and the District of Columbia Bars.

Zakia Mahasa, Immigration Judge, Baltimore Immigration Court

Attorney General Jeff Sessions appointed Zakia Mahasa to begin hearing cases in August 2018. Judge Mahasa earned a Bachelor of Business Administration degree in 1981from the University of Maryland and a Juris Doctor in 1986 from the University of Maryland, Carey School of Law. From 1997 to 2018, she was magistrate in the Circuit Court for Baltimore. From 1992 to 1994, she was a staff attorney and, from 1994 to1997, she was a supervising attorney, both for the House of Ruth domestic violence legal clinic, also in Baltimore. From 1987 to 1992, she was an attorney with the Legal Aid Bureau of Maryland. Judge Mahasa is a member of the Maryland State Bar.

Michael G. McFarland, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Michael G. McFarland to begin hearing cases in August 2018. Judge McFarland earned a Bachelor of Arts degree in 2004from New York University and a Juris Doctor in 2007from New York University School of Law. From 2011 to 2018, he was assistant chief counsel and then deputy chief counsel for Immigration and Customs Enforcement, Department of Homeland Security, in New York, N.Y. From 2007 to 2011, he was a staff attorney with the U.S. Court of Appeals for the Second Circuit, also in New York, N.Y. Judge McFarland is a member of the New York State Bar.

Patrick M. McKenna, Immigration Judge, Chicago Immigration Court

Attorney General Jeff Sessions appointed Patrick M. McKenna to begin hearing cases in August 2018. Judge McKenna earned a Bachelor of Arts degree in 1998 from DePauw University and a Juris Doctor in 2001 from University of Notre Dame Law School. From 2006 to 2018, he was

Communications and Legislative Affairs Division

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assistant chief counsel and associate legal advisor for Immigration and Customs Enforcement, Department of Homeland Security, in Chicago and Washington, D.C. From 2002 to 2006, he was assistant state’s attorney for the Will County State’s Attorney in Joliet, Ill. From 2001 to 2002, he was an associate with Eichorn and Eichorn in Hammond, Ind. Judge McKenna is a member of the Illinois and Indiana State Bars.

Nancy E. Miller, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Nancy E. Miller to begin hearing cases in August 2018. Judge Miller earned a Bachelor of Arts degree in 1974 from the University of California, Los Angeles, and a Juris Doctor in 1984 from Southwestern University School of Law. From 1998 to 2018, she was attorney and managing partner of Reeves Miller Zhang & Diza in Pasadena, Calif. From 1988 to 1998, she was a solo practitioner in private practice. From 1986 to 1988, she was associate attorney with the Law Office of James LeTourneau. From 1985 to 1986, she was law clerk and associate attorney with the Law Office of Kehrela Hodkinson. Judge Miller is a member of the State Bar of California.

Angela Munson, Immigration Judge, LaSalle Immigration Court

Attorney General Jeff Sessions appointed Angela Munson to begin hearing cases in August 2018. Judge Munson earned a Bachelor of Arts degree in 1990 from Georgia State University and a Juris Doctor in 1994from Tulane Law School. From 2005 to 2018, she was assistant U.S. attorney with the Office of the U.S. Attorney, Northern District of Georgia. From 2011 to 2012, she was detailed as resident legal advisor to the U.S. Embassy in Baghdad, Iraq. From 1998 to 2005, she was assistant U.S. attorney with the Organized Crime and Drug Enforcement Task Force, Office of the U.S. Attorney, Northern District of Georgia. From 1994 to 1998, she was assistant district attorney with the Office of the Fulton County District Attorney. Judge Munson is a member of the State Bar of Georgia.

Jonathan W. Owens, Immigration Judge, Cleveland Immigration Court

Attorney General Jeff Sessions appointed Jonathan W. Owens to begin hearing cases in August 2018. Judge Owens earned a Bachelor of Arts degree in 1997 from the University of Michigan and a Juris Doctor in 2005from Michigan State University, Detroit College of Law. From 2014 to 2018, he was an administrative law judge (ALJ) manager, and from 2007 to 2014, he was an ALJ both for the State of Michigan Licensing and Regulatory Affairs in Detroit. From 2003 to 2007, he was departmental analyst for the Office of Child Support, Michigan Department of Health and Human Services. Judge Owens is a member of the State Bar of Michigan.

Kaarina Salovaara, Immigration Judge, Chicago Immigration Court

Attorney General Jeff Sessions appointed Kaarina Salovaara to begin hearing cases in August 2018. Judge Salovaara earned a Bachelor of Arts degree in 1976 from Smith College and a Juris Doctor in 1980from the University of Virginia Law School. From 1991 to 2018, she was an assistant U.S. attorney in the U.S. Attorney’s Office, Criminal Division, Northern District of

Communications and Legislative Affairs Division

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Illinois in Chicago. From 1981 to 1991, she was an associate and later a partner with Jenner & Block, also in Chicago. From 1980 to 1981, she was a clerk for Judge Barbara B. Crabb in the U.S. District Court for the Western District of Wisconsin. She is a member of the Illinois State Bar.

Eric J. Tijerina, Immigration Judge, San Antonio Immigration Court

Attorney General Jeff Sessions appointed Eric J. Tijerina to begin hearing cases in August 2018. Judge Tijerina earned a Bachelor of Arts degree in 1991 from the University of Texas at Austin, a Master of Business Administration in 1996 from Texas Christian University, and a Juris Doctor in 2006 from St. Mary’s University School of Law. From 2015 to 2018, he was a policy analyst with the Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security in Washington, D.C. From 2014 to 2015, he was associate director, Immigrant Children’s Legal Program, U.S. Committee for Refugees and Immigrants in Arlington, Va. From 2010 to 2014, he was director of legal programs, Refugee and Immigrant Center for Education and Legal Services in San Antonio, Texas. From 2008 to 2010, he was teaching clinical fellow and supervising attorney for the St. Mary’s University School of Law Immigration Clinic in San Antonio, Texas. From 2006 to 2008, he was lead attorney, Legal Orientation Program, Political Asylum Project of Austin, Texas. Judge Tijerina is a member of the State Bar of Texas.

Nelson A. Vargas-Padilla, Immigration Judge, Ulster Immigration Court

Attorney General Jeff Sessions appointed Nelson A. Vargas-Padilla to begin hearing cases in August 2018. Judge Vargas-Padilla earned a Bachelor of Arts degree in 1990 from the State University of New York at Albany and a Juris Doctor in 1994from the University at Buffalo School of Law. From 2016 to 2018, he was litigation and national security counsel for the Litigation and National Security Coordination Law Division, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), in Washington, D.C. From 2015 to 2016, he was transformation counsel and immigration officer for the Refugee Affairs Division, USCIS, DHS, in Kenya and Malaysia. From 2013 to 2016, he was transformation counsel for the Transformation Law Division, USCIS, DHS, also in Washington, D.C. From 2001 to 2007, he was assistant chief counsel; from 2007 to 2009, he was senior attorney; and from 2009 to 2013, he was deputy chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement, DHS, in Baltimore, Md. From 1996 to 2001, he was attorney advisor for the Board of Immigration Appeals, Executive Office for Immigration Review, Department of Justice in Falls Church, Va. Judge Vargas-Padilla is a member of the New Jersey State Bar.

Michael G. Walleisa, Immigration Judge, Miami Immigration Court

Attorney General Jeff Sessions appointed Michael G. Walleisa to begin hearing cases in August 2018. Judge Walleisa earned a Bachelor of Science degree in 1981from Philadelphia College of Textiles and Science and a Juris Doctor in 1985 from Temple University School of Law. From 1989 to 2018, he worked in several roles in the U.S. Attorney’s Office, Southern District of

Florida in Miami. From 2002 to 2018, he was assistant U.S. attorney with the National Security — more —

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Section. From 1996 to 2002, he was assistant U.S. attorney with the Civil Division. From 1993 to 1996, he was chief of the Narcotics and Violent Crimes Section. From 1992 to 1993, he was chief of the Trial Section. From 1991 to 1992, he was deputy chief of the Major Crimes Section. From 1990 to 1991, he was assistant U.S. attorney with the Organized Crime Section. From 1989 to 1990, he was assistant U.S. attorney with the Appeals/Major Crimes Sections. From 1985 to 1989, he was an attorney with the State Attorney’s Office in Dade County, Fla. Judge Walleisa is a member of the Florida Bar.

George J. Ward Jr., Immigration Judge, Falls Church Immigration Adjudication Center

Attorney General Jeff Sessions appointed George J. Ward Jr. to begin hearing cases in August 2018. Judge Ward earned a Bachelor of Arts degree in 1988 from Bucknell University and a Juris Doctor in 1993 from St. John’s University School of Law. From 1999 to 2018, he served in several positions with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS) in both Arlington, Va., and Washington, D.C. From 2012 to 2018, he was deputy chief in the Office of Chief Counsel, ICE, DHS. From 2011 to 2012, he was deputy chief and then chief with the District Court Litigation Division. From 2010 to 2011, he was chief with the District Court Litigation Section. From 2007 to 2010, he was legislative counsel. From 2003 to 2007, he was an associate legal advisor. From 1999 to 2003, he was an assistant district counsel with the former Immigration and Naturalization Service, Department of Justice in New York, N.Y. From 1993 to 1999, he was an assistant district attorney with the Nassau County District Attorney’s Office in Mineola, N.Y. Judge Ward is a member of the New York and New Jersey State Bars.

Jason R. Waterloo, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Jason R. Waterloo to begin hearing cases in August 2018. Judge Waterloo earned dual Bachelor of Science degrees in 2004 from the Pennsylvania State University and a Juris Doctor in 2007 from the West Virginia University College of Law. From 2014 to 2018, he was an assistant chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security in Los Angeles. From 2008 to 2014, he was an assistant district attorney with the Berks County District Attorney’s Office in Reading, Pa. From 2007 to 2008, he was a judicial law clerk with the Northampton County Court of Common Pleas in Easton, Pa. Judge Waterloo is a member of the Pennsylvania Bar.

— EOIR —

Communications and Legislative Affairs Division

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Congrats and good luck to all!
Remember, no matter what Jeff Sessions says, the job of being a good Immigration Judge is about impartiality, fairness, scholarship, respect, timeliness, teamwork, and Due Process for the individuals coming before the Immigration Court. Nothing else!
PWS
08-16-18

HON. JEFFREY CHASE: SOME IMMIGRATION JUDGES START PARTICIPATING IN THE SESSIONS/DHS ALL-OUT ATTACK ON DUE PROCESS BY SUBJECTING ASYLUM APPLICANTS TO AN UNAUTHORIZED “SUMMARY JUDGMENT PROCESS” TO DENY ASYLUM WITHOUT A HEARING – The Likely Result Of Yet Another Administration “Haste Makes Waste” Initiative – Massive Denials Of Due Process, Unlawful Removals, Lost Lives, Massive Remands From The “Real” Courts, Further Loss Of Credibility For The Immigration Courts, More Unnecessary Backlogs, Waste Of Taxpayer Funds – Hey, What’s Not To Like About Another Jeff Sessions Bogus White Nationalist Scheme?

https://www.jeffreyschase.com/blog/2018/6/24/are-summary-denials-coming-to-immigration-court

Are Summary Denials Coming to Immigration Court?

An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony.  The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.

I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation.  Rather, all are pieces in a puzzle.  Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons.  What jumped out at me was the fact that the decision, Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief.  It was pretty clear that Sessions wanted this requirement eliminated.

Let’s look at the timeline of recent developments.  On January 4 of this year,  Sessions certified to himself the case of  Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool.  On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal.  The decision was written by Board Member Garry Malphrus, a hard-line Republican who was a participant in the “Brooks Brother Riot” that disrupted the Florida ballot recount following the 2000 Presidential election.

On March 5, Sessions vacated Matter of E-F-H-L-.  Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.

On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings.  Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.

On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded.  On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.

On May 31, Castro-Tum’s case was on the Master Calendar of Immigration Judge Steven Morley.  Instead of ordering Castro-Tum deported in absentia that day, the judge continued the proceedings to allow an interested attorney to brief him on the issue of whether Castro-Tum received proper notice of the hearing.  Soon thereafter, the case was removed from Judge Morley’s docket and reassigned to a management-level immigration judge who is far less likely to exercise such judicial independence.

On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group.  In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.”  The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.

So in summary, within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases.  They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.

So where does all this leave the individual judges?  There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges.  I feel that the above developments have created something of a Rorschach test for determining an immigration judge’s ideology.

The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench.  They can find a “fatal flaw” in the claim – either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing.  It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.

On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors.  They will conference these cases, and hear detailed testimony from the respondent, country experts, and other witnesses on the particular points raised by Sessions in Matter of A-B-.  They may consider alternative theories of these cases based on political opinion or religion.  They are likely to take the time to craft thoughtful, detailed decisions.  And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing.  They may also have their decisions remanded by the conservative BIA, whose leadership is particularly fearful of angering its superiors in light of the 2003 purge of liberal BIA members by then-Attorney General John Ashcroft.  The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.

There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture.  Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-.  So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection?  It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Four Easy, Low Budget, Steps To A Better, Fairer, & More Efficient U.S. Immigration Court System:

  • Remove Jeff Sessions and all other politicos from control.
  • Restore Immigration Judges’ authority to “administratively close” cases when necessary to get them off the docket so that relief can be pursued outside the Immigration Court system.
  • Give Immigration Judges authority to set and control their own dockets, working with Court Administrators and attorneys from both sides (rather than having DHS enforcement policies essentially “drive the docket” as is now the case) to:
    • Schedule cases in a manner that insures fair and reasonable access to pro bono counsel for everyone prior to the first Master Calendar;
    • Schedule cases so that pleadings can be taken and applications filed at the first Master Calendar (or the first Master Calendar after representation is obtained);
    • Schedule Individual Hearings in a manner that will maximize the chances of “completion at the first Individual Hearing” while minimizing “resets” of Individual Hearing cases.
  • Establish a Merit Selection hiring system for Immigration Judges overseen by the U.S. Circuit Court in the jurisdiction where that Immigration Judge would sit, or in the case of the BIA Appellate Immigration Judges, by the U.S. Supreme Court.

No, it wouldn’t overnight eliminate the backlog (which has grown up over many years of horrible mismanagement by the DOJ under Administrations of both parties). But, it certainly would give the Immigration Courts a much better chance of reducing the backlog in a fair manner over time. Just that, as opposed to the Trump Administration’s “maximize unfairness, minimize Due Process, maximize backlogs, shift blame, waste money and resources” policies would be a huge improvement at no additional costs over what it now takes to run a system “designed, built, and operated to fail.”

PWS

06-25-48

TAL @ CNN: EVIDENCE MOUNTS OF SESSIONS’S ILLEGAL POLITICIZED HIRING OF IMMIGRATION JUDGES — Best Qualified Individuals Need Not Apply? – Is He Looking For Hacks Who Share His White Nationalist Bias? – When Is Congress Going To Create An Article I Court?

Immigration judge applicant says Trump administration blocked her over politics

By Tal Kopan, CNN

When the Obama administration offered Thea Lay a chance to serve as one of the nation’s top immigration judges pending a successful background check, she eagerly accepted.

But the Trump administration withdrew her offer this year with little explanation after months of silence — and she suspects it’s because of her political ideology.

Lay’s case is one of several being questioned by House Democrats, who have accused the Justice Department of political bias in hiring judges to serve on the nation’s immigration courts — which would be against the law. And the suspicion of politically based hiring, even if unfounded, belies the greater criticism of Attorney General Jeff Sessions’ broader efforts to speed up the immigration courts and use his authority as attorney general to single-handedly interpret immigration law.

Lay has spent much of her 25-year career working on the exact type of asylum law Sessions recently reinterpreted by rolling back protections for domestic violence victims, and she worries that she was perceived as having an ideology that would not be welcome on the Board of Immigration Appeals.

The Justice Department forcefully denies that political ideology has been a factor in any of its hiring of immigration judges, including the decision on Lay, citing federal laws which say it cannot be. They say Lay declined a temporary appointment to the position and cite that and a subsequent reevaluation of the salary for the position as the reason for her rejection.

But the questions about whether there was a quiet move away from candidates who were perceived as too pro-immigrant is an illustration of the unique position the attorney general holds, as the political appointee who hires, manages and can single-handedly overrule each of the nation’s immigration judges.

More: http://www.cnn.com/2018/06/21/politics/immigration-judge-applicant-says-trump-administration-blocked-her-over-politics/index.html

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Sessions is fortunate that the “Do-Nothing” GOP has control of both Judiciary Committees. But, some day the truth will out. And, given Sessions’s already well-established record of lies, distortions, and misrepresentations, it could be pretty ugly.

PWS

06-22-18