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Read the memo at the above link.
- In his last out of touch missive, McHenry said that one year was a “reasonable period” for adjudicating an asylum application in accordance with Due Process. Now it’s six months or less!
- The “statutory limit” in section 208 never had any basis in fact. It was a number pulled out of thin air by Congress and has never been achievable.
- In any event, Congress’s and EOIR’s attempt to place and enforce statutory limits on adjudication can never contravene Due Process.
- Heck, when I was in Arlington, most “affirmative” asylum cases were more than six months from filing before they even got on my docket at Master Calendar.
- For “defensive” filings (those asylum applications filed initially with the Immigration Court), there is no way that with 1.1 million cases already on the docket and scheduled, new cases could be fairly completed within six months without massive, massive “Aimless Docket Reshuffling” that will jack up the backlog even further.
- Given the “docket overload” in the Immigration Courts, there simply aren’t enough qualified attorneys (particularly pro bono attorneys) available to represent asylum applicants with six months or less to prepare. Many pro bono organizations can’t even schedule “intake interviews” within six months!
- In the Sessions mold, McHenry, who has never to my knowledge adjudicated an asylum application in his life, is attempting to “duress” judges into choosing between upholding Due Process and their oaths of office and following unreasonable agency directives aimed exclusively at screwing asylum seekers and promoting more denials.
- The cases are more complex than ever. If anything, the DOJ should be promulgating a “blanket exemption” from the six month period given the current overall circumstances.
- The obtuse “two standard” interpretation is completely new; although the statute has been in effect for approximately two decades, nobody has ever interpreted that way before!
- This is an obvious, heavy handed attempt by non-judicial officials at EOIR and DOJ to interfere with and direct the independent decision making responsibilities of the Immigration Judges.
- This system is heading down the tubes! It’s a farce! If the Article IIIs don’t put an end to it, it will go down as one of the most disgraceful mockeries of our Constitution and the rule of law since the days of Jim Crow! Not to mention a total and intentional perversion of international protection standards.
PWS
11-19-18
Agreed. They’re missing the key questions. Within 180 days of what? Of entering the country? Of being NTA’d? No, it’s 180 days of filing the application. The statute seems to be directed at the judges and adjudicators. It doesn’t seem to be aimed at cutting short case preparation time. I think the canon of constitutional avoidance dictates that the statute should be read to state that the application must be adjudicated within 180 days of the case and all the evidence being fully prevented.
Otherwise the statute is absurd. It gives applicants 365 days to apply. But McHenry’s reading moves that deadline to less than half of the time allocated by Congress. The applicant now must file, present all the evidence, and the judge must adjudicate all within 180 days. If that’s the case, then what’s the point of giving the applicant 365 days to file?
I agree, Nathan!
Also, with the elimination of precedents that might have helped applicants on DV and family claims, everything will take more evidence and documentation. In that context, McHenry’s interpretation is absurd. Moreover, legal interpretations are supposed to be for the BIA, not the Director.
Best,
Paul