https://www.nytimes.com/2018/06/12/us/politics/immigration-judges-jeff-sessions.html
Katie writes:
TYSONS, Va. — As the nation’s immigration judges gathered here for training this week, Attorney General Jeff Sessions had a message: They needed to help “end the lawlessness that now exists in our immigration system.”
But to many of the judges, Mr. Sessions’s hard-line immigration agenda is increasingly standing in the way of their ability to mete out justice.
In interviews, some objected to quotas he imposed on them this spring of 700 cases per year, as well as his ban on a bureaucratic tool they used to reduce their caseloads. Others expressed concern about the impact his zero-tolerance policy on illegal immigration could have on their dockets, and his push for faster rulings. They viewed those together as leaving them at risk of creating a system that sacrifices due process for efficiency.
“Sessions is treating them like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts, which count more than 300 judges in their ranks and another two dozen or so on an immigration appeals board.
Mr. Sessions’s carrying out of his immigration agenda has reignited a long-running debate about the independence of immigration judges, who are part of the Justice Department, not the judicial branch. Some of the judges fear that they could be used to help fulfill the administration’s priorities, endangering their independence.
“The Justice Department is the premier law enforcement agency, but the role of law enforcement is different from that of a neutral court,” said Dana Leigh Marks, the president emeritus of the immigration judges’ union. She said the organization believes the time has come to separate immigration courts from the department.
. . . .
In a speech on Monday at the judges’ conference outside Washington, hosted by the Justice Department, Mr. Sessions asked them to look for inefficiencies to finish cases more quickly.
“We have to be very productive,” he said. “Volume is critical.”
Three judges said they were struck by his emphasis on speed, prosecutions and policy matters without acknowledgment of the need to balance those demands with ensuring due process for immigrants. They said they feared the focus on metrics and closing cases would make it harder to sort through complicated cases and easier to simply deny applications for entry into the United States.
Scores of attendees wore American flag pins in support of “judicial independence and integrity in our courts,” according to a note accompanying the pins.
Dozens of judges who gathered early Monday evening expressed anxiety over their treatment, according to one person present who was not authorized to share the details of the private meeting.
They said they lacked specifics on which cases would count toward their quotas. They pointed to Mr. Sessions’s ban on their use of administrative closure, the tool that effectively allowed them to close cases. And they worried that his zero-tolerance policy on illegal immigration would flood the system with new cases and make it hard for them to decrease the system backlog of about 700,000 cases.
The potential impact of Mr. Sessions’s zero-tolerance policy toward immigration has been of particular concern to judges who are already grappling with a large caseload. “It’s as if local police and prosecutors decided to prosecute every traffic ticket of anyone going 2 miles per hour over the speed limit and filled the court system with those cases,” Mr. Schmidt said.
Judges are also resigning in large numbers, Ms. Marks said, a pattern she expected to continue. As of last year, 39 percent of immigration judges were eligible for retirement, according to a study conducted by the Government Accountability Office. Many immigration judges were sworn in during a wave of hiring in the 1990s.
The Justice Department has said it is on pace to hire 100 more judges this year, and its data shows that the department has never filled every slot. Currently there are 336 judges out of the 484 authorized slots.
In a conference session on Tuesday afternoon with Mr. McHenry, one judge asked if they could delay disciplining judges on the attorney general’s directives about metrics and streamlining the system. The room erupted in applause, but the question went unanswered.
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Read Katie’s full article at the above link!
Immigration is an incredibly complex area of the law — often compared with the Tax Code. And, it almost certainly has more direct and potentially life-threatening and life-changing effects than does tax law (with due apologies to my tax lawyer colleagues). For better or worse, when they have an opportunity to get together at annual conferences (which aren’t necessarily held annually), most Immigration Judges love to “talk shop.”
Normally, you’d expect to hear things like questions about pending Supreme Court cases, the latest BIA precedent decision, immigration reform legislation, or how to constructively react to some of the criticism dished out by Circuit Courts, as well as sharing “best practices” to achieve fundamental fairness with efficiency.
But, while I was waiting in the lobby to meet my “dinner group” of some former colleagues, the “hall chatter” was all about things like “judicial dashboards,” “production quotas,” “what counts as a completion,” “docket rearrangement without consultation,” “required retraining” (sounded very much like a judicial version of the former Soviet “re-educaton camps”), “stress relief,” “not losing it in court,” “retirement estimates,” and, perhaps most tellingly “how can I remain true to my oath of office and job description without getting harassed, fired, or reassigned?”
Not much room for talk of law, Due Process, best methods and practices, and how to insure that folks, including the unrepresented, get the relief they might be entitled to under the immigration laws.
Appropriate for a judicial conference? Of course not! But, when your “keynote address” is delivered by a totally non-judicial Enforcement Cheerleader in a tone and with content more appropriate to a class of new Border Patrol officers than a group of supposedly independent, senior, quasi-judicial officers of the U.S. Government, that’s what you’re going to get. What must newly appointed U.S. Immigration Judges — some who gave up other good jobs to serve in these positions — have thought?
What made it even worse was the misuse of the judicial conference as a “platform” to release a “personal rewrite” by Sessions (although I suspect some outside group actually drafted it for him or gave him the outline) of established asylum principles in a way that dripped with overt hostility to legitimate asylum seekers, most of them desperate abused women, and was accompanied by unsupported statements about asylum fraud and bogus statistics that could have come right out of a “restrictionist group’s backgrounder.” The message to the judges was very clear — most asylum seekers are fraudsters, so you should cut corners, prejudge cases, look for any reason to deny asylum, preferably at the preliminary stage without wasting time on a full hearing, and crank out those denials to deter folks from fraudulently seeking refuge under our laws — or start looking for a new job!
From a legal, ethical, moral, and intellectual honesty standpoint, the Attorney General’s speech to the Immigration Judges was simply jaw-droppingly inappropriate! How is a quasi-judicial officer sworn to uphold the U.S. Constitution and charged by regulation with “exercising independent judgment” supposed to “negotiate” a system where the “boss” is basically saying “to heck with fairness, respect, and quality — just crank up the volume.”
Contrary to what Sessions said, DHS isn’t EOIR’s “partner.” No, DHS is a party in interest to every adversary proceeding in Immigration Court! They are legally entitled to no better treatment or consideration than any foreign national respondent, even an unrepresented one!
Indeed, the Due Process Clause of our Constitution applies to respondents but not to the DHS! The “founding fathers” weren’t trying to protect the rights of the Government under the Bill of Rights. They were seeking to protect individuals against Govenment overreach and abuses. Jeff Sessions is just the type of overbearing Government official that the founding fathers might have envisioned abusing the power and authority of his office.
“Rumored” assertions by some EOIR management officials that “we don’t care how you decide these cases” are patently absurd! Of course, Jeff Sessions cares about the results! He wants removal orders — fast and by the truckload!
He certainly wasn’t talking about racing through hundreds of thousands of cases to grant 43%-56% of the asylum cases that are decided on the merits, which is what should happen based on past performance had Sessions not reached in to “tilt” the law against asylum seekers and to use detention and family separation to coerce individuals into giving up potentially winnable claims. Anybody who perceived Sessions’s remarks to the judges on Monday as an encouragement to treat asylum applicants fairly, impartially, humanely, respectfully, and to insure that the generous interpretation of well-founded fear set forth by the Supremes in Cardoza-Fonseca was followed would need their head examined!
Even though immigrants, both legal and undocumented, forced and voluntary, built America and are primarily responsible for our success as a nation, I can’t remember ever hearing Jeff Sessions say anything kind or nice about any foreign national! Indeed, it’s hard to think of any public occasion when Sessions addressed immigration without providing some false narrative, ethnic slur, bogus or misleading statistic, denigrating the contributions of immigrants, dehumanizing them, or seeking to drum up xenophobia by touting false links between migrants and crime.
Sessions’s other message to the judges: By the way, folks, this backlog mess that we and our predecessors have created and are now intentionally aggravating by aimlessly reshuffling dockets, cranking up needless detention, poor enforcement policies, lousy management and hiring practices, absurdly inadequate technology, and attempting to use the Immigration Courts as “deterrents” is your fault (along with the respondents and their attorneys) because you don’t work hard enough or smart enough! You’re going to “take the fall” when we aren’t able to stop human migration by using the Immigration Court as an enforcement tool! We’re giving you “mission impossible,” and if you can’t carry it out, you’re not doing your job!
Congress — which is ultimately responsible for this mess — and the Article III Courts who have knowingly and intentionally swept the glaring Due Process deficiencies, stunning ethical conflicts, lack of quality control, and failure to consistently provide fundamental fairness under their “Ivory Tower carpets” for far too long are going to have to step up and put an end to this parody of justice or accept responsibility for the implosion of the Immigration Courts and Constitutional Due Process that are looming on the horizon.
One thing is for certain: You can’t run a Due Process, fundamentally fair court system under Jeff Sessions. He proved that this week — beyond any reasonable doubt! Anybody who doubts that, isn’t being reasonable — or isn’t paying attention!
PWS
06-13-18
Excellent analysis and breath of honesty, Paul…as always. Are there any efforts underway to get midterm candidates to take up the issue of creating Article I immigration courts?
Thanks.
Both the FBA and the NAIJ have nonpartisan efforts underway on the Hill. But, they can’t endorse candidates or take partisan positions.
On the other hand, I strongly recommend that folks who care about America’s future as a Democracy vote only for candidates pledged to an independent immigration judiciary, full status for Dreamers, and putting the breaks on the Trump/Sessions program of child abuse, “gonzo” enforcement, and destruction of the U.S. legal protection system and the Due Process Clause of our Constitution.
There aren’t many GOP candidates out there running who have been willing to stand up to the Trump/Sessions immigration cabal in any meaningful way. Indeed, some in the GOP are outrageously promoting changes in the law that probably violate the Constitution and would make things even worse for already traumatized children and asylum applicants.
But, if folks stay home from the polls, then the minority who are now in charge of this country will have free rein to continue their program of destroying democratic institutions in favor of a “cult of personality.” It appears to me that too many of those in the majority who favor saner, more inclusive government and the promotion of humane, democratic values grumble but don’t go to the polls when it counts. That’s how Trump got elected with 46% of the popular vote! And, it perfectly possible that the GOP will remain firmly in control of Government after Nov. 2018 and that Trump will be re-elected if more folks (particularly young people and people of color) don’t get out and vote for their own and the greater public interests.
There’s every reason to believe that the GOP will play the “Korean Summit,” low unemployment, and a robust stock market to the hilt to cover over some of their White Nationalist programs with “non-core” voters. Unless the Dems come up with an effective strategy to counter that (health care is one obvious issue), then the descent into the abyss is likely to continue.
Due Process Forever!
Best,
PWS
The boat is sinking and we (those of us in immigration advocacy and the immigration bar) are stuck managing where the husk of the vessel will plop once it descends to the bottom. I’ve so far understood the role of lawyers and advocates over the past decade to be that of a vanguard, holding the line long enough for political solutions to fix the system. I have learned from and adapted the principles of the CARA project and the SIFI project in Stewart to my own practice and work, thinking that maybe collaborative representation, which brings in many to handle a case, as opposed to one-one-one pro bono representation, which is premised on the work of lone heroes, might be the solution to strengthening that vanguard and buying enough time to get through this administration. But I am interested in your view, perhaps in a future post, of what the breakdown of the immigration courts, and perhaps our immigration system as we currenly know it, looks like. Do the courts shut down for a prolonged period caused by walk outs? What happens to new border crossers? What happens to immigrant visa applicants? How do you see such a calamitous event reverberating onto the rest of the judicial system, Article III courts included, and into our political life? No need to answer in the comments. It’s just that your writing brings these questions to the forefront of my mind, and, I am sure, to the minds of other people deeply enmeshed in this subject matter.
It’s a truly ugly time in our history, Damjan.
But if we insure that migrants are represented, speak truth to power, and keep forcing the Article III Courts to face up to the grotesque, systemic violations of the Constitution, law, and ethics that they have been avoiding and incubating for decades, justice will eventually prevail. Bullies and liars like Trump and Sessions operate on the premise that the folks who could stop them are afraid to do so. So far, they have gotten away with too much of their evil and unethical behavior.
Force Federal Judges to get out of their collective ivory towers and Congressmen to come out from cowering under the desks and react as parents, grandparents, and human beings to the human rights outrage and tragedy that is being committed in the perverse name of the laws they are responsible for overseeing (and now the false claim to religious justification). Today, it’s kids and women of color being abused; tomorrow it could be their kids and grandchildren. Is this what the American Constitution and our justice system stand for? Heck no!
Hold the “task avoiders” accountable in the public forum for whether they stand with the abusers or with humanity! Ultimately, there is no middle ground on racism and child abuse. Harm to the most vulnerable among us is harm to all.
Due Process Forever!
Best,
Paul