What Are The Odds Of The U.S. Immigration Courts’ Survival?
by Paul Wickham Schmidt
Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.
So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.
Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.
While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.
At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.
Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.
Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”
The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.
So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.
To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:
PWS
02/14/17
From Tom Felhofer:
So Trump, in spite of his campaign promises, has done nothing for the American worker, eh? And it’s already been….what….25 days into his reign? What a complete lying failure he is! Is that what we’re to think? On the other hand, can anyone name me a President who has done more in his first 25 days?
Apparently the author has not noticed the huge “Trump bounce” the stock market has taken since the day after the election. We are at record highs! Think of the shot in the arm for union pension funds, IRAs, and other investments! Most Americans (including “working people”) have benefited handsomely from the optimism generated by Trump’s economic initiatives.
Anyway, cheap shots at Trump draw attention away from any point being made. How about a piece or two that avoids them completely.
Regards,
Tom
From PWS:
Yeah, Tom, like threatening trade wars with our allies and looking to repeal financial regulations to help Wall Street fat cats at the expense of American consumers. Many in agriculture who supported Trump didn’t seem wildly enthused about his initial rollout. And companies continue to move jobs abroad. But, you’re right that it hasn’t fully played out yet.
Your point is well taken regarding shots at Trump. I’ll have to work on it.
And, yes, my retirement portfolio is doing well, as I hope yours is too!
Thanks and best wishes,
P
The Trump stock market bounce is due to our new President promising to lower taxes and discard the Obama “watermelon’ (green outside-red inside) regulatory obstacles to economic growth. Not his immigration policies. But Tom is right that if economic growth accelerates rapidly, Trump’s support will grow accordingly. But as to immigration laws, as we used to say in Iowa: “What does that have to do with the price of corn”? and “That’s a horse of another color”. LOL!
G
From Gus Villageliu:
Back in 2008 when I was in OGC, I remember fending off a $100K DOJ study proposed by OIL’s Tom Hussey to “study” whether BIA was necessary, consistent with his often expressed view that all due process “Opportunity to be Heard” requires is one “bite at the apple”, even if that bite is merely before an overworked IJ making hundreds legal decisions in state prison dining rooms surrounded by immates having lunch, without research tools, and counting on the BIA to clean things up, as both Milhollan and PWS promised us repeatedly.
Running out the clock on fiscal year leftover funding with inconvenient pertinent questions which made DOJ officials pause did the job.
Well, as you know, Gus, I did my very best to get the BIA functioning more like an Article III Circuit Court of Appeals. It was still a “work in progress” when my tenure as Chair ended in 2001. And, after that, Ashcroft and his successors went in the “other direction” — toward the “Service Center Model.”
Like you, having served as an Immigration Judge I can say that I can not imagine a system MORE in need of meaningful appellate review like the BIA is supposed to provide to achieve due process. The working conditions and pressures at the Immigration Court level are such that mistakes, including those that threaten individuals’ lives, are inevitable. We all try our best to avoid them, but every trial judge makes some mistakes. As I used to say, “that’s why somebody invented appeals courts.” Or, “Don’t take my word for it. Appeals helped send my kids to college, and I don’t want you deprived of due process or my former colleagues deprived of a livelihood. So, you should check and see whether the Board thinks I got it right.”
Thom Hussey and I spent lots of time together over the years in various roles. We closed down bars from coast to coast with screaming matches at 2 AM. Ah, the good old days! Where have they gone?