"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The ABA Commission on Immigration is launching a Virtual Immigration Court Helpdesk for the Atlanta, Baltimore, Hyattsville, and Sterling Immigration Courts.
The informational flyers are attached here. Please feel free to share with your extended networks.
Hon. Ilyce Shugall U.S Immigration Judge (Ret) Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto, CA Adjunct Professor, VIISTA Villanova Member, Round Table of Former Immigration Judges PHOTO: VIISTA Villanova
I started my post-law school immigration law career at ProBAR in Harlingen, Texas, as an Equal Justice Works Fellow from September 1999 to September 2001. In May, 2023, I had the privilege of returning to ProBAR as a volunteer with the ABA Commission on Immigration (COI) to engage in a week of pro bono service. I have been a Commission member for almost three years. My return, over twenty years after I left the Rio Grande Valley, provided me perspective, and caused me to reflect on the many changes as well as the constants in the South Texas border region, where I learned how to be a fierce immigration advocate. I was privileged to spend the week with welcoming ProBAR staff, COI colleagues, and the COI director, Meredith Linsky, who was my boss and mentor at ProBAR, a hero to the immigrants’ rights movement, and is someone I am proud to call a colleague and friend.
Our first day of our pro bono week began at the new ProBAR office. When I walked into the office, I felt like I was in a different world! ProBAR’s new office space is large, spacious, beautiful, and inviting. It is clear that much thought went into the design and structure of the office, considering the need for private office space, open collaborative space, large quiet spaces, conference rooms, outdoor space, and a gym and yoga room to ensure staff can decompress and energize before, during, or after long, challenging, and emotionally draining days. The office is a sharp contrast to the ProBAR office where I worked—two rooms on the second floor of an old, pest-infested house. The new office is equipped with state-of-the-art technology, another contrast from my experience, where we used dial up internet and unplugged the fax machine before we could access the internet. We learned that ProBAR now has a staff of 270 people. In 1999 when I started, we were a staff of three—the ProBAR director, the volunteer paralegal, and me. I am thrilled to see the investment in the staff through hiring and creating a livable workspace. Comfortable, functional, supportive workspace is crucial to the sustainability of the demanding work.
Our schedule for the week included meeting with partner organizations in Brownsville and Matamoros, meeting with individuals detained at the Port Isabel Detention Center (PIDC), touring children’s shelters, and visiting La Posada Providencia, a welcoming shelter for many immigrants and refugees. I was impressed by the resiliency and responsiveness of organizations in the region. The increase in resources for noncitizens in the Rio Grande Valley was striking and is unquestionably due to necessity. The humanitarian crisis at the border is unlike anything I saw between 1999 and 2001 and the need has increased exponentially. I was impressed by the partnerships established by the ProBAR team. The increased staffing has allowed ProBAR to form and maintain crucial partnerships throughout the Rio Grande Valley. During my time at ProBAR, we relied on trusted partnerships; however, due to our limited staffing, we were unable to engage in outreach or foster relationships with many organizations. The current partnerships with shelters and other social services organizations are crucial to ProBAR’s ability to meet the needs to the community they serve.
ProBAR’s presence in Brownsville is remarkable. We utilized ProBAR’s small office close to the border. This space was crucial when the Migrant Protection Protocols (MPP) program was still in place, as ProBAR staff served clients facing removal proceedings in the tent courts. The office space on the border continues to provide essential access to clients and the social services agencies that serve them. It allows the ProBAR staff to do outreach, education, and intake at the non-legal organizations that serve mutual clients. For example, while in Brownsville, we provided legal consultations to numerous individuals staying at a Brownsville shelter. We also visited one of the unaccompanied children’s shelters in Brownsville, where ProBAR staff provide services.
During our pro bono week, we had the opportunity to travel to PIDC twice to provide consultations to recently arrived asylum seekers. It was bittersweet to return to the detention center I frequented from 1999 to 2001, when I traveled daily to what was then called Port Isabel Service Processing Center (PISPC) – PIDC is a more appropriate name. PIDC has not changed much. The entrance, lobby, attorney visitation area, and court space have been remodeled. I recall a dingy dirty lobby with a pay phone I used regularly to call the ProBAR office after long afternoons of presentations and consultations. The lobby is now clean, spacious, and the pay phone is gone. However, the interior of the detention center remains the same- a jail with razor wire, barbed wire, and no freedom of movement. Also similar was ProBAR’s access to the facility due to the reputation the agency has built over the years. When I went to PISPC daily, I felt respected by guards and government officials. I learned the importance of building those relationships to ensure access to those who needed the services. ProBAR’s reputation endures, and the relationships remain strong. ProBAR’s continued ability to provide Know Your Rights presentations and consultations in the facility is crucial to serving the needs of thousands of individuals every year.
In the two days I conducted consultations with noncitizens at PIDC, I met men from Venezuela, Honduras, and Guatemala. The nationalities of individuals detained have shifted over the years, but the reasons they have fled their homes remains constant. They are fleeing political violence and oppression, gang violence, cartel violence, and government instability. The men detained at PIDC endured exceptional hardship, danger, and suffering to arrive at the United States border to seek refuge. While United States detention policies and conditions were cruel when I worked at ProBAR, they are exponentially worse today. Currently, noncitizens are forced to stay in unsanitary and unsafe refugee camps in Matamoros often for months while trying to request protection in the United States. They face disease, kidnapping, rape, and torture in Matamoros while the United States and Mexican governments turn a blind eye and collaborate to keep them from crossing the bridge into Brownsville. When those lucky enough to find a way into the United States arrive, many are forced to remain detained in Customs and Border Protection custody for weeks, sleeping on the floor with limited to no access to showers and in freezing rooms or cells. They then must navigate the new confusing and complex asylum rule without counsel. While we were unable to provide representation, the men we met with were grateful for our explanation of the legal process, as well as the pro bono legal consultations we provided.
As part of our trip, we also had the opportunity to go to Matamoros and meet with partners at the Sidewalk School. The plan to walk over the bridge, meet with Sidewalk School staff, and tour one of the refugee shelters took much time and coordination on the part of ProBAR and ABA staff. Unlike when I lived and worked in Harlingen, when going to Matamoros was often a spur of the moment decision to have dinner or go shopping, today, numerous considerations must be assessed. Matamoros was a safe city when I crossed regularly. However, today, due to the United States’ and Mexico’s war on drugs, Matamoros is often dangerous, particularly for refugees hoping to reach the United States. I appreciate the care, planning, and coordination that went into our day in Matamoros. Witnessing the situation at the base of the bridge as well as the refugee camp was crucial to gaining a true understanding of the consequences of United States immigration law and policy changes over the last several years. Photos of the bridge and the camp provide a glimpse into the reality that refugees are living. However, the photos did not prepare me for what I saw and experienced. Walking into and around the shelter full of makeshift tents, no sanitation, no services, in 90+ degree temperatures with soaring humidity was horrifying. People approached us for information and help, desperate to access medical care and safety. I fought back tears the entire time we were in the camp. No one should live in these conditions, and no one who lives in the camps is there by choice. Refugees tolerate the dangerous, unsanitary conditions that are making them sick because they were forced to leave their homes. Their flight was not voluntary. Seeing the camp provided me even greater perspective on the situations they fled. I left feeling sad, horrified, and angry at the United States government policies that created the humanitarian crisis in Matamoros. It is avoidable. It can be changed for the better. Instead, the United States government recently finalized a rule to make it harder for those seeking protection to access the United States asylum system. This rule will exacerbate the problems in Matamoros and has caused and will continue to cause greater human suffering on both sides of the border.
I am thankful for my week with ProBAR. I appreciated starting my days as I started many days when I lived in Harlingen decades ago, running on the path along the Arroyo Colorado in the heat and humidity, among the beautiful lush green plants, chirping birds, and adorable bunnies. I found peace and energy running on the path, which carried me through the days of the harsh realities of human suffering and unfair laws and policies. My time at ProBAR reminded me why I continue to work as an immigration attorney, why I work at another amazing nonprofit, Immigrant Legal Defense, to provide free legal services to underserved communities, including noncitizens in ICE detention.
Author
Ilyce Shugall
Managing Attorney at Immigrant Legal Defense
Ilyce is currently a Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto (CLSEPA). She was an adjunct professor in the Villanova Interdisciplinary Immigration Studies Training for Advocates from January 2021 to December 2021. She was previously the Director of the Immigrant Legal Defense Program at the Justice and Diversity Center of the Bar Association of San Francisco. Prior to joining JDC, Ilyce served for 18 months as an immigration judge in the San Francisco Immigration Court. Prior to serving as an immigration judge, Ilyce was the Directing Attorney of the Immigration Program at CLSEPA from 2012-2017. Under Ilyce’s leadership, CLSEPA’s immigration staff grew from four to twenty. Ilyce also served temporarily as the first legal director for the San Francisco Immigrant Legal Defense Collaborative at the Bar Association of San Francisco in 2015. For 10 years, Ilyce was an attorney at Van Der Hout, LLP. Three of those years she spent as a partner. Before joining the private sector, she worked at the South Texas Pro Bono Asylum Representation Project (ProBAR) as a National Association of Public Interest Law/Equal Justice Fellow. Ilyce received the 2016 National Pro Bono Services Award from the American Immigration Lawyers Association; and was a 2015 Silicon Valley Business Journal’s “Women of Influence” awardee. Ilyce is a commissioner on the American Bar Association’s Commission on Immigration and previously served as a commissioner on the State Bar of California Commission on Immigration and Nationality Law. She was NIPNLG’s update editor for Immigration Law and the Family from 2012-2017, and has published numerous articles on immigration law. Ilyce is an active member of the Round Table of Former Immigration Judges. Ilyce holds a JD from DePaul University College of Law, and a BA from the University of Wisconsin, Madison.
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Talk about a professional career spent on the “front lines” of fighting for due process and humanity! Thanks for all you do and for being such an inspiring role model, my friend (and fellow Badger). It’s an honor to be your colleague on the Round Table and the VIISTA Villanova Program!
I was detailed to the Port Isabel Detention Center shortly before my retirement. I remember it pretty much as Ilyce describes it today.
The facility and court personnel were nice and helpful. But, there was an aura of grimness, despair, and wastefulness hanging over everything that just couldn’t be dispelled. Leaving the facility every night have me a sense of relief.
I think that all so-called policy makers in the Biden Administration should be required to experience a week in one of their immigration prisons as a prerequisite for obtaining or retaining their jobs. Sadly, and inexcusably, we now have folks making life or death decisions about immigration and human rights policy and the future of our nation who know less and have less perspective than Ilyce and others had after completing their one-year EJW Fellowships! The lack of expertise, compassion, creativity, and common sense in the Biden Administration’s immigration hierarchy/bureaucracy shows!
To quote Ilyce, about the largely self-created “humanitarian crisis” at the border: “It is avoidable. It can be changed for the better.” My question is why isn’t a Democratic Administration that many voted for to solve problems and make things better at the border getting the job done?
Immigration Court can be a daunting experience even for veteran litigators. For folks like this, alone with no representation, it’s “mission impossible.” Yet Biden A.G. Merrick Garland has done little to fix the systemic “user unfriendliness” and sometimes outright hostility to pro se litigants in his totally dysfunctional “courts in name only!” (“CINOs”). PHOTO: Victoria Pickering, Creative Commons License
Clearly, gimmicks rolled out by Garland and the Biden Administration, including stunts like “dedicated dockets,” “expedited dockets,” “Aimless Docket Reshuffling,” detention courts in the middle of nowhere, unregulated bond procedures, lousy precedents, wasteful litigation against practitioners, proposed regulations irrationally “presuming” denial of asylum, abuse of Title 42, assigning asylum seeker resettlement to GOP nativists like DeSantis and Abbott, and refusal to bring in qualified experts with Immigration Court experience to fix this disasterous system have made the already horrible plight of the unrepresented worse! See, e.g.,https://trac.syr.edu/immigration/reports/674/.
With respect to DHS detainees awaiting hearing, a few are subject to so-called “mandatory detention without independent review” as a result of statutes. Others are imprisoned because ICE claims that they are so-called “arriving aliens” (a designation that even some IJs struggle with, but that has huge consequences for a respondent), “likely to abscond,” or ”security risks!”
But, a significant “unstated purpose” of immigration detention, often in substandard conditions, is to coerce detainees into giving up legal rights or waiving appeals and to punish those who stubbornly insist on asserting their rights.
When the almost inevitable “final order of removal” comes, officials in Administrations of both parties believe, without much empirical evidence, that detainees will serve as “bad will ambassadors,” carrying back woeful tales of wonton cruelty and suffering that will “deter” others from darkening the doors of “the world’s most generous nation.”
In spite of this overall “institutionalized hostility,” there is a small, brave cadre of “due process/fundamental fairness heroes” known as the Office of Legal Access Programs, or “OLAP” at EOIR!Forced into “the darkest corners of the EOIR Tower dungeon” during the reign of terror of “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr, they have finally been released into daylight.
The Dungeon Former A.G. Jeff “Gonzo Apocalypto” Sessions had a special place in the EOIR Falls Church Tower for those trying to assist pro se litigants in Immigration Court. Public Realm
But, make no mistake about it — these courageous folks at OLAP aren’t helping to “drive the train” at EOIR under Biden and Garland, as they certainly should be! No, as was the case before Trump, they are racing down the station platform to catch the train as it departs without them.
How do I know? It’s actually pretty obvious. If Garland & the Administration were actually serious about promoting representation, they would:
Require a positive report from the OLAP before opening any new Immigration Court;
Subject all existing detained “courts” (that aren’t really “courts” at all, within the common understanding of the term) to an OLAP analysis, involving input from the pro bono bar, and close any location where pro bono counsel can’t be made reasonably available to all detainees who want it;
Make part of the IJ hiring process input from the OLAP and the public into the demonstrated commitment of each “finalist” for an Immigration Judge position to working to maximize representation; and
Work with outside programs like Professor Michelle Pistone’s innovative “VIISTA Villanova Program” for training accredited representatives to “streamline and expedite” the Recognition & Accreditation process housed within OLAP.
To my knowledge, none of these obvious “first steps” to address the representation crisis at EOIR have been instituted. Tells us about all we need to know about the real importance of the OLAP in Garland’s galaxy.
Recently, I had the pleasure of meeting with Alicia de La O, her attorneys, and interns at the ABA who are helping the OLAP “staff” the “pro se hotlines” for detainees in immigration proceedings. Of course, they can’t provide “legal advice,” although they can direct pro se litigants to available “self help” materials prepared by OLAP and reliable pro bono NGOs. But, as I pointed out, just being available to speak with isolated detainees, listen sympathetically, and direct them to available resources is a “big deal” from both a human and a practical perspective.
Alicia de la O Senior Attorney/Chief Counsel, ABA Commission on Immigration PHOTO: Linkedin
Remarkably, the amazingly talented, informed, and energetic undergraduate internsworking with the ABA had a far better understanding of the corrosive effect on democracy and America’s future of the mocking of due process, fundamental fairness, racial justice, and human dignity in Immigration Courts than inept and often clueless Biden Administration so-called “immigration policy officials” have acknowledged with their words and deeds. Indeed, one of the undergraduate interns had already completed the VIISTA program. He therefore probably knows more about the Immigration Courts at the “retail level” than some of the clowns Garland has running EOIR!
The energy and commitment of these interns to take on existential challenges that our “leaders” from both parties have shunned, gave me some hope for America’s future. That is, if democracy can survive the overt attacks from the right and its tepid defense by Democrats, by no means an assured outcome.
This opportunity to meet with those working on the front lines of helping the most isolated, vulnerable, and intentionally neglected among us got me thinking about what I might say to a pro se litigant stuck in the “EOIR purgatory,” based on my experience. I note, with some pride, that during my time on the trial bench, almost every pro se individual who wanted to appeal one of my orders was able to file timely with the BIA based on the detailed instructions I gave them at the end of the hearing.
So, as promised, here’s “my list!”
PRO SE CHECKLIST
Judge (Ret.) Paul Wickham Schmidt
March 1, 2023
1) Be careful in filing out the I-589. Everything in the application, including mistakes, omissions, and failure to answer questions can be used AGAINST you at the hearing. Filing a fraudulent application can have severe consequences beyond denial of your case.
2) Do NOT assume that significant omissions or errors in the I-589 can be corrected or explained at the hearing without adverse consequences.
3) If you use a translator, ask that the application be read back to you in FULL for accuracy, before signing. Generally, there is no such thing as an “insignificant error” on an asylum application. All inaccuracies can and will be considered by the IJ in determining whether you are telling the truth.
4) Obtain any relevant documentation supporting the claim and attach to the application. All documents in a foreign language MUST be translated into English. A certificate of accuracy from the translator must also accompany the document. DO NOT expect the court interpreter to translate your documents during the hearing.
5) Understand NEXUS to a “protected ground;” merely claiming or even proving that you will suffer harm upon return is NOT sufficient to win your case; many pro se cases fail on this basis.
6) Any pro se case claiming a “Particular Social Group” will need help in formulating it. Do NOT expect the IJ or ACC to assist in defining a qualifying PSG.
7) Keep a copy of the application and all evidence submitted.
8) Sign your application.
9) Make sure that the original signed copy goes to the Immigration Court and a copy to the ACC.
10) Keep documents submitted by ICE or the Immigration Court.
11) Do NOT rely on your translator, friends, relatives, or “jailhouse lawyers” for advice on filling in the application. NEVER embellish or add incorrect information to your I-589 just because someone else tells you to or says it’s “the only way to win your case.”
12) DO NOT let friends, detention officers, the IJ or anyone else (other than a qualified lawyer working for you) talk you out of pursuing a claim if everything in it is true. You must “tune out chatter” that everybody loses these cases, and therefore you are wasting your time.
13) Do NOT tell the IJ and/or ACC that everything in your application is true and correct if it is not true!
14) If you discover errors in your application before the hearing, ask the IJ at the beginning of the hearing for an opportunity to correct them. Do NOT wait to see if the ACC brings them up.
15) If you will be testifying through an interpreter, ask the IJ for a brief chance to converse with the interpreter before the hearing to make sure you understand each other. If there is any problem, tell the IJ BEFORE the hearing begins.
16) The Immigration Court hearing is a formal, adversary hearing, NOT an “informal interview” like the Asylum Office.
17) Be courteous and polite to the Immigration Judge, the ICE Assistant Chief Counsel, and the interpreter at all times, BUT BE AWARE:
1) The IJ and the ACC are NOT your friends;
2) They do NOT represent your interests;
3) The ACC’s basic job is to urge the IJ to deny your application and enter an order of removal;
4) The IJ is NOT an independent judge. He or she works for the Attorney General a political enforcement official. Some IJs function with a reasonable degree of independence. But, others see themselves largely as assisting the ACC in in denying applications and rapidly turning out removal orders.
5) The interpreter works for the court, NOT you.
18) YOU will be the only person in the courtroom representing your interests.
19) Don’t answer a question that you don’t understand. Ask the IJ to have it repeated. If it is a complicated question, ask the IJ if it can be broken down into distinct parts.
20) If you really don’t know the answer to a question, don’t “guess!” “I don’t know, your honor” is an acceptable answer, if true.
21) If the ACC introduces evidence at the hearing — say a copy of the Asylum Officer’s notes — ask the IJ for a full translation through the interpreter before answering questions.
22) If documents you submitted support your claim, direct the IJs attention to those documents.
23) When it is time for the IJ to deliver an oral decision, make sure that you are allowed to listen through the interpreter.
24) Bring a pencil or pen and a pad of paper to the hearing. Try to take notes on the decision as it is dictated by the IJ.
25) If the decision goes against you, tell the IJ that you want to reserve an appeal and request copies of the appeal forms. You can always withdraw the appeal later, but once an appeal is waived it is difficult, often impossible, to restore it.
26) If the IJ rules in your favor, and the ACC reserves appeal, understand that the order in your favor will have no effect until the appeal is withdrawn or ruled upon by the BIA. For detained individuals, that probably means remaining in detention while the appeal is resolved, which might take months.
27) If you appeal, fill out the forms completely according to instructions and file with the BIA as soon as possible, the same or next day if you can. That is when your memory will be best, and it maximizes the chance of the BIA receiving your appeal on time. Do NOT wait until the last minute to file an appeal.
28) Be SPECIFIC and INCLUSIVE in stating why you think the IJ was wrong. Attach a separate sheet if necessary. Just saying “The Judge got it wrong” or “I disagree with the decision” won’t be enough and might result in the BIA rejecting your appeal without further review.
29) Remember to file the separate fee waiver request form with the Notice of Appeal.
30) Assume that all filing deadlines will be strictly applied and that pro se applicants will NOT be given any breaks or special treatment, despite mailing difficulties and other problems.
31) DON’T count on timely mail delivery. The Notice of Appeal, brief, or any other document is not “filed” with the BIA until they actually receive it. Merely placing it in the mail before the due date will NOT be considered a timely filing if the document arrives late. Mail early!
32) If you are not in detention, use a courier service to deliver filings to the BIA so you have solid evidence of timely filing.
33) If you check the box on the appeal form saying you will file a brief or additional statement, you MUST do so, even if short. Failing to file a brief or written statement after checking that box can be a ground for the BIA to summary dismiss your appeal without considering the merits.
34) Info about the BIA Pro Bono Project.
NOTICE: The ideas above are solely mine. They are not legal advice, and have not been endorsed or approved by any organization or any other person, living or dead, born or unborn.
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.
As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.
In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.
What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.
The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.
Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.
One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.
Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.
Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.
For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.
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Jason Dzubow The Asylumist
“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡
In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”
The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!
A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?
Dalia Castillo-Granados and Yasmin Yavar. So far this year, the Children’s Immigration Law Academy has responded to more than 300 legal technical assistance questions. It has coordinated five in-depth virtual trainings and hosted eight webinars that attracted more than 1,600 attendees.
Dalia Castillo-Granados had just begun her fellowship with the St. Frances Cabrini Center for Immigrant Legal Assistance, a program of Catholic Charities of the Archdiocese of Galveston-Houston, when she met Yasmin Yavar in 2008.
Like Castillo-Granados, Yavar focused a lot of her attention on special immigrant juvenile status cases as the pro bono coordinator of Kids in Need of Defense’s new office in Houston. Despite changes in the law that allowed more children to apply for this form of immigration relief—which gives those who have been abused, neglected or abandoned a pathway to lawful permanent residence in the United States—attorneys were just beginning to test the waters in this area.
After collaborating on a case, Castillo-Granados and Yavar stayed in touch and created their own support system.
“There was a very small community of attorneys, even nationwide, representing unaccompanied children,” says Castillo-Granados. “In Houston, Yasmin and I were trying to get into state court and educating judges about why we were there. We had each other on speed dial, calling to talk over strategy and get suggestions and push the cases forward.”
Several years later, as an increasing number of unaccompanied children crossed the United States-Mexico border, Castillo-Granados and Yavar wanted to support the legal service providers and volunteer attorneys who were taking their cases. They drafted a plan for a legal resource center focused on children’s immigration law, and Yavar, who had worked with the ABA’s South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, shared it with Commission on Immigration Director Meredith Linsky.
At the time, Linsky met regularly with the ABA Working Group on Unaccompanied Minor Immigrants. Its members liked the idea, and in September 2015, Linsky helped Castillo-Granados and Yavar launch the Children’s Immigration Law Academy.
“We decided to do exactly what we did for each other back when we were starting, but for everyone else,” says Castillo-Granados, who serves as CILA’s director.
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Read Amanda’s full article at the link.
Here’s an interesting contrast in problem-solving, creative thinking, dynamic leadership, and effectively using resources. Between 2008, when they met, and 2021, Dalia and Yasmin experienced an approximately 15X growth in the number of unaccompanied children, from 8,000 to 120,000. Faced with this stressful situation and a U.S. Government that under Administrations of both parties has displayed a rather callous indifference to child welfare, it would have been easy to give up and take their talents to another area of law!
Because they worked for an NGO, the couldn’t demand more resources or claim that drastic reductions in children’s rights, harsher enforcement, or “deterrence” were the “only solutions.” Interestingly, these were exactly the type of “rote, alarmist, reactionary reactions” that the Obama Administration had and that the Trump Administration tried to “implement” without the benefit of legislation.
Dalia and Yasmin viewed the problem as challenging, yet solvable, came up with a plan, and sold it to other members of the legal community — on its merits, not its “scare value.” They were able to “leverage” their experience, skills, and dynamic leadership to pool resources, create teamwork, and “teach and inspire others to help those in need.”
They actually expanded, improved quality, and increased efficiency, thus multiplying rather than diluting their effectiveness. The also relied largely on existing tools and frameworks, but “leveraged” them in a creative and more efficient manner.
I submit that this is the exact opposite of how the broken bureaucracies at DHS, DOJ, and ORR have reacted to most immigration issues. Given lots of personnel, considerable resources, a workable, if not “perfect,” legal framework, and ample flexibility to redirect and repurpose wasted or misused resources, the last three Administrations have fallen “flat on their overstuffed and moribund bureaucratic faces.”
With billions in taxpayer dollars, thousands of employees, and a legal framework that actually provides plenty of useful options, the USG has underachieved, to put it charitably. It has fallen back on wasteful, disruptive, andinefficient “proven to fail” deterrence “gimmicks;” ludicrous rhetoric; mythical threats; aimless reshuffling and churning of existing workload; bolloxed priorities; victim shaming and blaming; cruelty; and most disturbingly, massive scofflaw actions, crackpot proposals, and blatant curtailment of important human and legal rights.
To make matters worse, at least the Biden Administration has had access to what is probably the greatest “talent pool” of human rights, immigration, and child welfare experts on the face of the earth — almost all of it in the private/NGO/advocacy/academic sectors! Yet, they have resisted sound expert advice and creative solutions, while largely passing over available dynamic and inspiring leadership to overstuff their bloated immigration bureaucracy largely with a mixture of Trump holdovers, Obama retreads, and lesser lights.
Obviously, talented NDPA superstars like Dalia and Yasmin are the wave of our future — not just in immigration and human rights, but in government, politics, our legal system, and American society! The issue is how we can force unwilling, “stuck in reverse” Dem Administrations to grow some backbone, enforce the values they espouse during elections, “clean house” in the bureaucracy and the ranks of ineffective, often clueless, politicos, and “repopulate and reform” the USG immigration bureaucracy and the beyond dysfunctional Immigration Courts with stars like Dalia and Yasmin. That is, courageous, visionary, experts who can actually solve problems rather than creating new ones and blaming the victims and those striving to hep them!
Many thanks to Roberto Blum, Esquire, of Houston Texas for sending this article my way. Roberto says “they are the real heroes!” I concur, my friend, 100%!
“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.
One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of a new Form G-28 and refuses to speak with the alternate attorney. In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.
Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.
Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.
Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria
The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022), https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.
Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”
Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.
The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.
This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.
Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)
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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients.
Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.
Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.
Deena Sharuk Senior Advisor ABA Commission on ImmigrationProfessor Lindsay Muir Harris UDC LawDr. Hillary Mellinger Assistant Professor Department of Criminal Justice and Criminology Washington State University PHOTO: WSUEloy Gardea Senior Staff Attorney ABA Commission on Immigration PHOTO: FacebookLeora Hudak Program Manager Center for Victims of Torture PHOTO: Linkedin
“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”
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PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!
RATED G — Suitable & Highly Recommended for All Audiences
Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!
Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about!
The video is 1 hour and 15 minutes!
“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!” — Paul Wickham Schmidt, ImmigrationCourtside
Two distinguished Members of the Round Table of Former Immigration Judges serve on the Commission:
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member, Round Table of Former Immigration JudgesHonorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges, PHOTO: CNNKnightess of the Round Table
KEY QUOTE FROM REPORT:
The Executive Branch should work with Congress to establish, through legislation, an immigration court system independent of any federal agency, both at the trial and appellate level. In the ABA’s view, any major court system restructure should have the following goals:
2
American Bar Association • Achieving America’s Immigration Promise
(1) Independence – Immigration judges at both the trial and appellate level must be sufficiently independent and adequately resourced to make high-quality, impartial decisions without improper influence, particularly influence that makes judges fear for their job security;
(2) Fairness and perception of fairness – The system must actually be fair, and it must appear fair to all participants;
(3) Professionalism of the immigration judiciary – Immigration judges should be talented and experienced lawyers representing diverse backgrounds; and
(4) Increased efficiency – An immigration system must process immigration cases efficiently without sacrificing quality, particularly in cases where noncitizens are detained.
As the calls for immediate EOIR reform grow, so does the sense of urgency for those vulnerable individuals (and their courageous, badly abused lawyers) caught up in the current unfair, biased, dysfunctional, and disgracefully misdirected and mal-administered Immigration Courts.
Notably, EOIR “management” has continued its unseemly race to implement a racist, White Nationalist, anti-asylum, anti-lawyer agenda right up until the end! Their latest unlawful regulations were immediately and emphatically enjoined by several Federal Courts.
EOIR has totally screwed up the Immigration Courts by piling up an avoidablebacklog that greatly exceeds 1.1 million cases, largely by scheming to deny cases that could be granted, retaining cases that should be closed on their artificially bloated docket, selecting unqualified judges without expertise in immigration, human rights, and due process, and arbitrarily changing priorities and “churning” cases (“Aimless Docket Reshuffling”). They have then had the gutless audacity and intellectual dishonesty to attempt to shift the blame for their gross management and squandering of public resources to their victims: the individuals denied due process and fair hearings and their lawyers!
Additionally, EOIR’s continuing efforts to abuse asylum seekers and their lawyers through illegal and immoral regulations, and DOJ attorneys’ equally unethical “defense of the indefensible,” has continued to waste the time of the Article III Courts. It was obvious that these latest regulations would undermine the incoming Biden Administration’s pledge to reinstate due process and that they were illegal from the “git go!”
This type of arrogantly “in your face Biden, Garland, democracy, and humanity” approach deserves immediate reputation, revocation, and removal of these responsible for the last, disgusting gasps of the “EOIR Clown Show!”🤡 It also demands that some action be taken to deal with the unethical DOJ lawyers 🦹🏿♂️🤮who have continued to “press this mess” before the Federal Courts.
A Federal paycheck does NOT exempt lawyers from ethical codes nor is it a license to clog the courts with a frivolous, invidiously intended civil litigation “strategy” designed to “wear down and exhaust” those private, largely pro bono or low bono, lawyers defending due process and the rights of the most vulnerable among us. In civil litigation, the USG does NOT have either a right or an obligation to defend an illegal racist agenda of invidious actions.
The disgraceful performance of all too many parts of the DOJ over the past four years must never, ever be repeated! This is a real, festering problem that “Team Garland” can’t afford to ignore as it takes the helm at the broken and dysfunctional DOJ that has become an actual threat to our democracy and our system of justice and an overt mockery of legal ethics.
Judge Garland, please end the “EOIR Clown Show!” 🤡🦹🏿♂️☠️🤮👎🏻🧹🪠 NOW!
⚖️🗽🇺🇸👍🏼Due Process Forever. The “EOIR Clown Show,” 🤡🦹🏿♂️🏴☠️Never!
PWS
01-17-21
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.
Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.
“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.
In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.
The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.
Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.
Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.
The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.
But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.
The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”
The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.
Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.
Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.
In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.
What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.
To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.
“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.
“If judges get into that red, they can lose their job,” Slavin said.
Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.
Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.
The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.
Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.
Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.
The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”
Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.
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Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!
Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!
Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.
It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.
Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeMe
A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY
By
Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals
&
Thomas Lister, Retired Wisconsin Circuit Judge
Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.
To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.
No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.
All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.
On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary.
Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.
We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.
To name just a few areas of “low hanging fruit,” we believe that:
• Most bonds;
• Initial “Master Calendars” (arraignments);
• Master Calendar scheduling for Individual Hearings;
• Motions Calendars;
• “Status” Calendars;
• Stipulated Final Order and Withdrawal Calendars;
• Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;
• Uncontested Adjustments of Status and other types of equitable waivers; and
• Voluntary Departure as the sole application cases
have elements in common with most other types of judicial work.
Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.
In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.
It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.
We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.
By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.
Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.
Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.
Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.
Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.
As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.
The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).
The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.
It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.
Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?
U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.
The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.
The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.
Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a seriesofpolicies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.
The Department of Justice did not respond to a request for comment.
Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.
“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”
Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.
Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”
And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”
“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.
Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.
Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.
In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.
Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.
Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.
What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.
NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.
“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”
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EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”
Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”
Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.
ABA COMMISSION ON IMMIGRATION CONFIRMS WHAT I’VE BEEN BEEN SAYING ALL ALONG:IMMIGRATION COURTS ARE “FUBAR” & INTENTIONALLY BEING MADE WORSE BY TRUMP ADMINISTRATION’S “MALICIOUS INCOMPETENCE”
Washington, DC. At a public meeting today at the National Press Club, the ABA Commission on Immigration rolled out its 2019 update to its 2010 report on “Reforming the Immigration System.” ABA President Bob Carlson led off by strongly reinforcing the organization’s commitment to Due Process and equal justice for all. Legislation, restructuring, and reform are the three themes.
In short, most of the helpful suggestions in the 2010 report were ignored. Some of the few that were implemented by the Obama Administration, the most helpful of which was more widespread use of prosecutorial discretion to rationalize court dockets, were intentionally reversed by the Trump Administration. The Trump Administration is mindlessly leading a “race to the bottom” where fairness, impartiality, scholarship, efficiency, and due process have incredibly and inexcusably regressed while backlogs have grown exponentially as a result.
One of the key findings was that under the Trump Administration, “policies have been put in place that seek to limit access to asylum, counsel, and the courts themselves. There is little regard for the human cost of detention and deportation.”
The solution set forth by the ABA is very straightforward: Congress must create an independent Article I U.S. Immigration Court outside the Executive Branch. Until that happens, justice and due process will continue to be compromised in Immigration Court, and our entire legal system will be endangered.
One of the most astute observations by the panelists was that putting more new judges into the current dysfunctional court system would be counterproductive. Every American should be ashamed of the Trump Administration’s “maliciously incompetent” maladministration and intentional abuse of our Immigration Court system. When asked about what they could do to address this national disgrace, panelists told the audience to “contact your legislators and demand action on Article I and other essential reforms contained in the report.”
At the end of the presentation, the ABA presented an award to Arnold & Porter partner Larry Schneider for the firm’s help in researching and preparing the report.
FULL DISCLOSURE:I previously was a witness before the ABA Commission.
“Give me your tired, your poor, your huddled masses yearning to breathe free.”
These words from an Emma Lazarus sonnet, engraved on a plaque on the pedestal of the Statue of Liberty, are not policy or law. Yet they embody the ideals and spirit of America, a land of immigrants.
Despite the countless ways that immigrants have advanced our country and have helped to fuel innovation and growth, the United States cannot welcome everyone who yearns to breathe free. Our nation needs to regulate and control immigration, have secure borders and keep people safe. But developing clear, comprehensive, practical and humane immigration law is possible—and long overdue.
Policies that separate children from their parents or deny legitimate asylum-seekers due process violate both our values and established law. The ABA has made this clear in a letter sent to the U.S. Attorney General and Secretary of Homeland Security. The ABA has suggested guidelines and compiled thoughtful and well-researched publications such as the recently updated “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States.”
While crafting comprehensive immigration law in a divided society can be difficult, it is imperative. One place to start is immigration courts.
An independent judiciary is a hallmark of our democracy. It encompasses the principle that all people are entitled to fair and impartial legal proceedings where important rights are at stake. Immigration courts decide issues that are life-altering.
Immigration courts, however, lack the safeguards that other parts of our justice system have. Structural and procedural issues have resulted in a backlog of more than 800,000 cases even though in recent years Congress has added resources, including a sizable increase in the number of judges and support staff.
Immigration courts currently exist within the Justice Department. Their personnel and operations are subject to direct control of the attorney general. Immigration judges can be removed without cause and can be at the mercy of whatever policy the attorney general wants followed. It can change from administration to administration. This structure creates a fatal flaw to an independent, impartial judiciary.
Restructuring the immigration adjudication system into an Article I court is the best solution to promote independence, impartiality, efficiency and accountability. Article I legislative courts are established by Congress, and judges would only be subject to removal for cause and not without judicial review. The U.S. Tax Court—where judges are nominated by the president, confirmed by the Senate and serve terms of 15 years—could act as a model. The idea has been endorsed by the National Association of Immigration Judges for more than two decades. The ABA adopted policy in 2010 calling for the creation of Article I immigration courts.
Another problem is representation. Access to counsel and legal information are critical in ensuring fairness and efficiency in the immigration system, yet only 37 percent of people in removal proceedings and just 14 percent of those detained are represented by counsel. The odds of winning an asylum case without legal representation are one in 10 while those with a lawyer win nearly 50 percent of their cases.
The ABA supports the right to appointed counsel for vulnerable populations in immigration proceedings, such as unaccompanied children, and mentally ill and indigent immigrants. Budgetary challenges make this unlikely to happen soon, so access to as much information about the process is critical.
The ABA, supported by its Commission on Immigration, will continue to advocate for fairness and full due process for immigrants and asylum-seekers in the United States and ensure an equitable, effective process for adjudicating immigration cases. This serves the interest of both the government and individuals within the system.
Our efforts to solve the problems must not undermine the fundamental principles that exemplify America and our justice system. Welcoming immigrants has been a strength of America since its founding.
As President George Washington said: “The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”
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I testified before the ABA Commission on Immigration about the “Due Process Crisis in Immigration Court,” the need for an Article I Court, the requirement for more lawyers, and the absolute Due Process disaster engendered by the intentionally misguided policies of the Trump Administration as they related to the abusive, counterproductive, and disingenuous use of the Immigration Courts as a branch of DHS Enforcement. The massive failure of Due Process in the U.S. Immigration Courts, the “retail level” of our justice system, threatens the individuals rights of all of us!
Expert panelists address immigration court reform at a discussion hosted by the ABA Commission on Immigration
America’s immigration justice system is broken. The case backlog is huge – nearly 700,000 immigrants and asylum-seekers are waiting for hearings or decisions – technology is old and there aren’t enough judges.
All five panelists agreed on that much at a May 4 discussion of how to reform immigration courts. They disagreed on who broke the system and how to fix it.
Several panelists accused Congress of underfunding the courts and the Justice Department of politicizing them. The head of the federal office that oversees immigration courts said he is working to cut down the backlog and hire more judges.
James McHenry, director of the Executive Office for Immigration Review (EOIR), said the agency will hire 150 additional judges and the hiring process will be much shorter than it has been. It previously took two years to hire new immigration judges. It now takes less than a year, McHenry said.
The discussion was sponsored by the ABA Commission on Immigration and held at the Washington, D.C., office of Fried, Frank, Harris, Shriver & Jacobson.
Three panelists – a sitting judge, a retired judge and an immigrant advocate – criticized EOIR’s handling of the courts. All three said the courts should be removed from the Justice Department and become independent.
Judge Denise Slavin of Baltimore, representing the National Association of Immigration Judges, said the immigration system today deserves a grade of D or D-minus. “The system is failing, there is no doubt about it,” she said.
The two biggest problems, she said, are the backlogs and public perception that the courts are unfair. The backlog, she said, was caused by “years of fiscal neglect” by both political parties. “Enforcement has been funded at levels that the courts have not,” she said.
She also accused Attorney General Jeff Sessions of politicizing the immigration courts. “It does not help matters much when our attorney general states to the press that we are being sent to the border to deport people. Not to hear cases, to deport people,” Slavin said.
She also criticized Sessions’ recent order that all immigration judges must clear at least 700 cases a year to get a “satisfactory” rating on their performance evaluations. No other American courts have such a quota, she said. “The only other court that we found that has that is in the People’s Republic of China,” Slavin said.
Retired immigration judge Paul Schmidt, an adjunct law professor at Georgetown University, accused the Justice Department of “aimless docket reshuffling” and have a “morbid fascination with increased immigration detention as a means of deterrence.” These actions “have turned our immigration court system back into a tool of DHS (Department of Homeland Security) enforcement,” he said.
He said the Trump administration has shown “unprecedented levels of open disdain and disrespect” for pro bono lawyers and immigration judges – “the two groups that are struggling to keep due process afloat in the immigration courts.”
He urged the audience to “join the new due process army and stand up for truth, justice and the American way in our failing, misused and politically abused United States immigration courts.” That earned the only applause of the morning.
Heidi Altman, policy director at the National Immigrant Justice Center, also accused the Justice Department of political interference in the immigration courts. “We are faced today with an administration that, at the very highest levels of leadership, is using rhetoric designed to reframe the goals and mission of our immigration court system,” she said. “The politicization of the immigration court system is particularly harmful because the courts are meant to be neutral bodies.”
McHenry said his agency is fixing the court system. Document e-filing will roll out nationally next year, he said. He denied Slavin’s accusation that judicial hiring is politicized. Merit hiring “will be the standard as long as I’m the director,” McHenry said.
In addition to hiring more judges, EOIR will shorten the backlog by using more teleconferencing, bringing back retired judges and re-examining all its policies, McHenry said. He said he sees no conflict between making the system more efficient and providing due process. “We believe judges can do both.”
The panel was moderated by Karen Grisez, special adviser to the ABA Commission on Immigration and public service counsel at Fried Frank.
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Couldn’t be clearer: Jeff Sessions is a huge part of the problem and is incapable of being part of the solution. Yes, other Administrations have also helped destroy justice in the Immigration Courts. But, Sessions graphically demonstrates why Due Process can never be safe from attack as long as the DOJ is in charge.
Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts
ABA COMMISISON ON IMMIGRATION
WASHINGTON, D.C.
MAY 4, 2018
Thank you, Madam Moderator. I am pleased to be on this distinguished panel. And, I am particularly delighted that EOIR Director James McHenry has joined us.
Clearly, this isn’t about Director McHenry, who by my calculations was still in law school when the wheels began coming off the EOIR wagon. Also, as a former Senior Executive in past Administrations of both parties, I’m familiar with being sent out to “defend the party line” which sometimes proved to be “mission impossible.”
For me, no more disclaimers, no more bureaucratic BS, no more sugar coating, no more “party lines.” I’m going to “tell it like it is” and what you need to do to reestablish Due Processand fundamental fairnessas the only acceptable missionof the United States Immigration Courts.
It’s still early in the morning, but as Toby Keith would say, “It’s me, baby, with your wakeup call!”
Nobody, not even Director McHenry, can fix thissystem while it remains under the control of the DOJ. The support, meaningful participation, and ideas of the judges and staff who work within it and the public,particularly the migrants and their lawyers, who rely on it, is absolutely essential.
But, the current powers that be at the DOJ have effectively excludedthe real stakeholdersfrom the process. Worse,they have blamed the victims,you, the stakeholders, for the very problems created by political meddling at the DOJ. We’re on a path “designed and destined for failure.”
The decline of the Due Process mission at EOIR spans several Administrations. But, recently, it has accelerated into freefallas the backlog largely created by “Aimless Docket Reshuffling” (“ADR”) by political officials at the DOJ over the past several Administrations and chronic understaffing have stripped U.S. Immigration Judges of all effective control over their dockets, made them appear feckless, and undermined public confidence in the fairness, independence, and commitment to individual Due Process of our Immigration Courts.
The Due Process Clause of the Fifth Amendment is there for one, and only one reason. To protect all individuals in the United States, not just citizens, from abuses by the Federal Government. In simple terms, it protects individuals appearing in Immigration Court from overstepping and overzealous enforcement actions by the DHS. It is notthere to insure either maximum removals by the DHS or satisfaction of all DHS enforcement goals.
Nor is it there to “send messages” – other than the message that individuals arriving in the United States regardless of statuswill be treated fairly and humanely. It serves solely to protect the rights of the individual, and definitelynotto fulfill the political agenda of any particular Administration.
The “EOIR vision” which a group of us in Senior Management developed under the late Director Kevin Rooney was to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that noble vision is now dead and buried.
In fact, when I mentioned it to a recently hired EOIR attorney just prior to my retirement in 2016, she looked at me as if I were from outer space. Indeed, nobody in his or her right mind would seriously suggestthat today’s Immigration Courts are on track to meet that vision or that it motivates the actions of today’s DOJ.
No, instead, the Department of Justice’s ever-changing priorities, Aimless Docket Reshuffling, and morbid fascinationwith increased immigration detention as a means of deterrence have turned our Immigration Court system back into a tool of DHS enforcement. Obviously, it is long past time for an independentU.S. Immigration Court to be established outside the Executive Branch.
I work with a group of retired colleagues on various Amicus Briefs trying to defend and restore the concept of Due Process in Immigration Court. I doubt that it’s what any of us thought we’d be doing in retirement. As one of those colleagues recently said, it’s truly heartbreaking for those of us who devoted large segments of our professional lives to improving Due Process and fairness in the Immigration Courts to see what has become of those concepts and how they are being mocked and trashed on a daily basis in our Immigration Court system.
Those of us watching from retirement treat each day’s EOIR news with a mixture of disbelief, disappointment, anger, and total outrage. But, it drives and inspires us to actionto halt and reverse the travesty of justice now taking place in our US Immigration Courts.
I am one of the very few living participants in the 1983 creation of EOIR when it was spun off from the “legacy INS” to create judicial independence and better court administration during the Reagan Administration.
And, I can assure you that the Reagan Administration was not filled with “knee jerk liberal.” No, those were tough, but fair minded and practical, law enforcement officials. The other “survivors” who come to mind are former Director and BIA Judge Tony Moscato and then Associate Attorney General Rudy Giuliani, whom I understand is “otherwise occupied” these days.
Sadly, although EOIR appeared to have prospered for a period of time after its creation, it has now regressedto essentially the same problematic state it was in prior to 1983: lack of actual and perceived judicial independence; a weak appellate board that fails to function as an independent judiciary promoting due process; an unwieldy structure, poor administrative support, and outdated technology; a glacial one-sided judicial selection process that effectively has eliminated private sector attorneys with actual experience in representing immigrants and asylum applicants in court from the 21stCentury Immigration Judiciary; and an overwhelming backlog with no end in sight.
Only now, the backlog is multiples of what it was back in 1983, nearing an astounding 700,000 cases! And additional problemshave arisen, including grotesque overuse of detention courts in obscure, inappropriate locations to discourage representation and inhibit individuals from fully exercising their legal rights; a lack of pro bono and low bono attorney resources; and new unprecedented levelsof open disdain and disrespect by Administration officials outside EOIR, at the DOJ, for the two groups that are keeping Due Process afloat in the Immigration Courts: private attorneys, particularly those of you who are pro bono and low bono attorneys representing vulnerable asylum applicants and the Immigration Judgesthemselves, who are demeaned by arrogant, ignorant officials in the DOJ who couldn’t do an Immigration Judge’s job if their lives depended on it.
But, wait, and I can’t make this stuff up, folks, it gets even worse! According to recent news reports, the DOJ is actually looking for ways to artificially “jack up” the backlog to over 1,000,000 cases – you heard me, one million cases– almost overnight. They can do this by taking cases that were properly “administratively closed” and removed from the Courts’ already overwhelmed “active dockets” and adding them to the backlog.
Administratively closed cases involve individuals who probably never should have been in proceedings in the first place – DACA recipients, TPS recipients, those waiting in line for U visa numbers, potential legal immigrants with applications pending at USCIS, and long-time law-abiding residents who work, pay taxes, are integrated into our communities, have family equities in the United States, and were therefore quite properly found to be low to non-existent “enforcement priorities” by the last Administration.
Some of you in the audience might be in one of these groups. They are your neighbors, friends, fellow-students, co-workers, fellow worshippers, employees, workmen, child care workers, and home care professionals., and other essential members of our local communities.
And you can bet, that rather than taking responsibility for this unnecessary cruelty, waste, fraud, and abuse of our court system, the DOJ will attempt to falsely shift blame to Immigration Judges and private attorneys like those of you in the audience who are engaged in the thankless job of defending migrants in the toxic atmosphere intentionally created by this Administration and its antics.
Expose this scam! Don’t let the DOJ get away with this type of dishonest and outrageous conduct aimed at destroying our Immigration Court system while disingenuously directing the blame elsewhere.
Basically, respondents’ attorneys and Immigration Judges have been reduced to the role of “legalgerbilson an ever faster moving treadmill” governed by the unrestrained whims and indefensible, inhumane “terror creating” so-called “strategies” of the DHS enforcement authorities. And, instead of supportingour Immigration Judges in their exercise of judicial independence and unbiased decision-making and nurturing and enhancing the role of the private attorneys, the DOJ, inexcusably, during this Administration has undercut them in every possible way.
For the last 16 years politicians of both parties have largely stood by and watched the unfolding Due Process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.
The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.
Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration, at levels over which Director McHenry has no realistic control, will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.
Our Constitution and our protection laws, which adhere to international treaties that we have signed, are not“loopholes.” Treating migrants fairly, humanely, and in accordance with the rule of law does notshow “weakness.” It shows our strengthas a nation.
There is a bogus narrative being spread by this Administration that refugees who are fleeing for their lives from dangerous situations in the Northern Triangle, that we had a hand in creating, are mere “economic migrants” not deserving of our protection. Untrue!
Migrants should be given a reasonable chance to get lawyers; an opportunity to prepare, document, and present their cases in a non-coercive setting; access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws in the generous spirit of the Supreme Court’s decision in Cardoza-Fonsecaand the BIA’s oft cited but seldom followed precedent in Matter of Mogharrabi; and a fair decision, preferably in writing, without being placed under duress by unnecessary, wasteful, inhumane detention and separation of families. This Court System should not be run by a Cabinet Member who has already announced his predetermination of the preferred outcomes and his total disdain for migrants and their lawful representatives.
Once fully documented, many of these cases probably could be granted either as asylum cases or as withholding of removal cases under the CAT in short hearings or by stipulation if the law were applied in a fair and unbiased manner. Those who don’t qualify for protection after a fair and impartial adjudication, and a chance to appeal administratively and to the Article III Courts, can be returned under the law.
This Administration and particularly this DOJ depend on individuals notbeing competently represented and therefore not being able to assert their rights to either legal status or fair treatment. But, there are still real,truly independent Article III Courts out there that can intervene and put an end to this “deportation railroad” and its trampling on our Constitution, our laws, our values, and our dignity as human beings. For, friends, if we are unwilling to stand up against tyranny and protect the legal and Constitutional rights of the most vulnerable among us, like asylum seekers, then our ownrights and liberties as Americans mean nothing!
I urge each of youin this audience to join the “New Due Process Army” and stand upfor “truth, justice, and the American way” in our failing, misused, and politically abused United States Immigration Courts and to continue the fight, for years or decades if necessary, until this systemfinally is forced to deliveron its noble but unfulfilled promise of “being the world’s best tribunals, guaranteeing fairness and due process for all.” Harm to one is harm to all! Due process forever!
Thank you, Madam Moderator, I yield back my time.
(04-04-18)
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ADMISSION: Notwithstanding the last sentence, I went “overtime,” so there actually was no time to “yield back.”
Expert panelists address immigration court reform at a discussion hosted by the ABA Commission on Immigration
