Immigration Reporter
Wall Street Journal
https://apple.news/A8ArjPBJHQmSHq_XVgoRjKw
Alicia A. Caldwell reports for the WSJ:
U.S.
Judges Quietly Disrupt Trump Immigration Policy in San Diego
Immigration court terminates more than a third of ‘Remain in Mexico’ cases
SAN DIEGO—Immigration judges in this city are presenting a challenge to the Trump administration’s policy of sending asylum-seeking migrants back to Mexico, terminating such cases at a significantly higher rate than in any other court, according to federal data.
Between January and the end of September, immigration judges in San Diego terminated 33% of more than 12,600 Migrant Protection Protocols cases, also known as Remain in Mexico, according to data collected by the Transactional Records Access Clearinghouse at Syracuse University.
Judges in El Paso, Texas, the busiest court hearing MPP cases, terminated fewer than 1% of their more than 14,000 cases.
The nine San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico weren’t properly notified of their court dates or that other due process rights were violated.
The high rate of dismissals is undermining the Trump administration’s goal of quickly ordering the deportation of more illegal border crossers who request asylum, including those who don’t show up from Mexico for their court hearings.
The effect is more symbolic than practical. Such a decision doesn’t mean a migrant is allowed to stay in the U.S., even if they show up for their court hearing. Instead, it saves them from being banned from coming to the country for 10 years and makes it tougher for the government to charge them with a felony if they cross the border illegally in the future. Those whose case is dismissed when they aren’t in court might not even know about the decision unless they call a government hotline.
Spokespeople for Customs and Border Protection, which carries out MPP at the border, and the Department of Homeland Security didn’t respond to requests for comment.
However, Immigration and Customs Enforcement, whose lawyers represent the government in immigration Court, have filed an appeal with a Justice Department panel. The appeal questions whether judges who terminate cases for migrants who don’t show up in court made a mistake.
A spokeswoman for the Executive Office for Immigration Review, the immigration court’s parent agency, said immigration judges don’t comment on their rulings.
Denise Gilman, an immigration lawyer and director of the immigration clinic at the University of Texas School of Law in Austin, said the high number of dismissals in San Diego sends a message that judges there believe many government’s cases don’t meet minimum legal standards.
That stands in contrast to immigration judges elsewhere, experts and advocates said.
“Everywhere but in San Diego, [judges] are going with the flow,” said Aaron Reichlin-Melnick, a lawyer and policy analyst with the American Immigration Council, which opposes the Trump administration’s border policies.
Immigration judges are unlike most other judges in that they are civil servants, neither appointed nor elected. In civil courts, some jurisdictions are known as more plaintiff- or defendant-friendly. Some federal appeals courts skew left or right, but most don’t rule so frequently on a single policy as immigration judges on MPP.
The Trump administration has sent more than 55,000 asylum-seeking migrants to Mexico to await court hearings under MPP. Migrants were first turned back in January, and through the end of September, just over 5,000 have been ordered deported. Eleven were granted some sort of relief, including asylum, according to TRAC.
Over two recent days in San Diego, multiple judges made clear that they had concerns about Remain in Mexico program as they dismissed cases.
Judge Scott Simpson terminated cases for a family of three from Honduras after ruling that the government violated their due process rights by not properly filling out their notice to appear. As a result, he said, the migrants didn’t know the grounds on which they could fight their case.
“I found that the charging document was defective on a technicality,” Judge Simpson explained to Belma Marible Coto Ceballos and her two children. “It just means that your court case is over.”
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Ms. Coto quietly nodded as she listened to an interpreter before her attorney, Carlos Martinez, objected to the government’s plan to send the family back to Mexico while it appeals the termination. She and her children are afraid to return, Mr. Martinez explained, after Ms. Coto was assaulted in Tijuana.
Judge Simpson said he didn’t have the authority to keep the family in the U.S., but sought assurances that authorities would interview Ms. Coto about her fears of being sent back to Mexico.
During a separate hearing that same day, 10 MPP cases were closed by Judge Christine A. Bither, who also raised questions about the migrants’ addresses listed on government documents. She denied a government request to issue deportation orders in their absence.
Judge Simpson, meanwhile, repeatedly questioned how the government would update migrants in Mexico about their cases. Migrants routinely move between shelters or cities and don’t have a fixed address where they can receive mail.
He noted that migrants’ addresses are routinely listed on government documents as “domicilio conocido,” or general delivery in Spanish. In one case, he noted that “domicilio conocido” was misspelled for a migrant family that arrived late to the port of entry and missed the bus to immigration court. The government agreed to dismiss that case.
Write to Alicia A. Caldwell at Alicia.Caldwell@wsj.com
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As noted in the article, the issues raised by the San Diego rulings are now before the Board of Immigration Appeals (“BIA”). Even if the BIA Appellate Immigration Judges “do the right thing” and reject the DHS appeal, I’m relatively sure that Billy Barr will change the result so that the DHS “wins” (and justice “loses”) no matter what the law says.
Larger question: a system where the biased prosecutor gets to hire and supervise the “judges” and then change the result if the individual nevertheless wins is obviously unconstitutional under the Fifth Amendment. So whatever happened to the Article III Courts whose job it is to uphold the Constitution and enforce the Bill of Rights against Executive overreach (which is exactly why the Bill of Rights was included in our Constitution)? Why are those gifted with life-tenure so feckless in the face of clear Executive tyranny?
Some Immigration Judges who lack life tenure and the other protections given to Article III judges are willing to stand up; those who are empowered so they can stand up instead stand by and watch injustice unfold every day in this fundamentally unfair system that is an insult to Constitutional Due Process, a mockery of justice, and a disgrace to their oaths of office!
Constantly Confront Complicit Courts 4 Change!
PWS
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