"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.
Here’s the link to the hearing. I had to move the “time bar” at the bottom to about 28 minutes in before the “action” started. Thanks to both Laura Lynch of AILA and Nolan Rappaport for forwarding this to me.
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PWS
04-19-18
Lorelei Laird reports for the ABA Journal:
. . . .
The news was not welcomed by the National Association of Immigration Judges. Judge A. Ashley Tabaddor, the current president of the union, says the quotas are “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.” A quota system invites the possibility that judges will make decisions out of concern about keeping their jobs, she says, rather than making what they think is the legally correct decision. And even if they don’t, she points out, respondents in immigration court may argue that they do.
“To us, it means you have compromised the integrity of the court,” says Tabaddor, who is a sitting immigration judge in Los Angeles but speaking in her capacity as NAIJ’s president. “You have created a built-in appeal with every case. You are going to now make the backlog even more. You’re going to increase the litigation, and you are introducing an external factor into what is supposed to be a sacred place.”
Retired immigration judge Paul Wickham Schmidt adds that the new metrics are unworkable. Reversal on appeal is influenced by factors beyond the judge’s control, he says, including appeals that DHS attorneys file on behalf of the government and shifting precedents in higher courts.
McHenry’s email said that “using metrics to evaluate performance is neither novel nor unique to EOIR.” Tabaddor disagrees. Federal administrative law court systems may have goals to aspire to, she says, but those judges are, by law, exempt from performance evaluations. Nor have the immigration judges themselves been subject to numeric quotas in the past.
“No other administration before this has ever tried to impose a performance measure that [had] this type of metrics, because they recognized that immediately, you are encroaching on judicial independence,” she says.
Schmidt agrees. “No real judge operates under these kinds of constraints and directives, so it’s totally inappropriate,” says Schmidt, who has also served on the Board of Immigration Appeals. “And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.”
Tabaddor adds that the Justice Department forced the union last year to drop a provision forbidding numbers-based performance evaluations from its contract negotiations. This was not a sign that NAIJ agrees with the quotas, she says, but rather that the union’s hands are tied under laws that apply to federal employees.
The memo continues a trend of Justice Department pressure on immigration judges to resolve cases. Attorney General Jeff Sessions, who has the power to refer immigration law cases to himself, is currently taking comment on whether judges should have the power to end cases without a decision. (The ABA has said they should.)
Last summer, the chief immigration judge discouraged judges from granting postponements. Sessions did the same in a December memo that referenced the backlog as a reason to discourage “unwarranted delays and delayed decision making.”
Sessions has power over the immigration courts because they are a branch of the DOJ, not an independent court system like Article III courts. Independence has long been on the judges’ union’s wish list, and it was one topic when HBO’s Last Week Tonight with John Oliverexplored some problems with immigration courts on Sunday.
As the ABA Journal reported in 2017, the immigration courts have had a backlog of cases for most of the past decade, fueled by more investment in enforcement than in adjudication. Schmidt claims that unrealistic laws and politically motivated meddling in dockets also contribute to the backlog. As of the end of February, 684,583 cases were pending, according to Syracuse University’s Transactional Records Access Clearinghouse, which gets its data from Freedom of Information Act requests.
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Read Lorelei’s full article at the link.
Clearly:
PWS
04-04-18
Aaron Blake reports for the Washington Post:
“The defining moment of Jeff Sessions’s time as attorney general has been when he recused himself from oversight of the Russia investigation. That quickly led to the appointment of special counsel Robert S. Mueller III, who is now extensively probing President Trump. And by all accounts, it seriously strained Sessions’s relationship with Trump, who thinks Sessions should be protecting him and doing his bidding.
But there are increasing signs that Sessions has indeed done plenty of Trump’s bidding behind closed doors. And he’s done it on some dicey and very politically tinged issues — so much so that he made Trump’s second FBI director deeply uncomfortable with the whole thing.
The Post’s Devlin Barrett and Philip Rucker report that Sessions has pressured FBI Director Christopher A. Wray to get rid of his deputy Andrew McCabe, a holdover from James B. Comey’s FBI and favorite target for Republicans alleging bias in federal law enforcement. Some have reported that Wray even threatened to resign; The Post is reporting that he did not explicitly do so.
Here’s the meat of it all:
Sessions, Republican lawmakers and some members of the Trump administration have argued for weeks that Wray should conduct some kind of housecleaning by demoting or reassigning senior aides to his predecessor, Comey, according to people familiar with the matter. These people added that Sessions himself is under tremendous political pressure from conservative lawmakers and White House officials who have complained that the bureaucracy of federal law enforcement is biased against the president.
Trump has made no secret of his distaste for McCabe, even tweeting about it repeatedly after McCabe announced last month that he would soon retire, when he becomes eligible for full pension benefits. Trump’s tweets date back to the summer and have focused on McCabe’s wife’s run for the Virginia state legislature as a Democrat and ties to Hillary Clinton.
. . . .
In other words, Trump has publicly stated his preference for Sessions to try to get rid of McCabe, and he has suggested Wray do it as well. Now we find out Sessions did indeed attempt it, and Wray resisted it.
But it’s only the latest evidence that Sessions and his Justice Department are taking specific actions that Trump has publicly urged, even as they, in some cases, risk looking like they are in service to Trump’s political goals.
The New York Times reported recently that a Sessions aide went to Capitol Hill last year seeking derogatory information about Comey at a time when Trump clearly had his eyes on firing Comey. (A Justice Department spokesman has denied this occurred.) There are also reports that the Justice Department is considering a revival of its investigation into Hillary Clinton’s emails, which Trump has repeatedly called for. And back in August, Sessions announced a ramped-up effort to root out leakers in the federal government — just days after Trump tweeted that Sessions had taken “a VERY weak position” on the issue.
(Remarkably, Trump actually hit Sessions for his weak positions on both leakers and Clinton’s emails in the same tweet. The Justice Department now appears to be addressing both.)
The Post’s Josh Dawsey and Matt Zapotosky even reported last month that Sessions has engaged in an all-out campaign to regain Trump’s faith by pointing to things the Justice Department has done in service of Trump’s agenda. That’s a pretty remarkable state of affairs.
Some of these things are issues on which Sessions has clearly sided with Trump, especially the dangers of leakers. So it’s perhaps no surprise Sessions would pursue them. But the fact that Trump called for these actions before Sessions was reported to have taken them sure makes it look like he’s taking direction from Trump — or at least succumbing to pressure that Trump and others have brought to bear.
Sessions has also, notably, resisted that pressure at times. During congressional testimony in November, he very publicly shunned a Republican lawmaker’s conspiracy theory — one to which Trump has also alluded — about how the federal government may have colluded with Democrats to spy on Trump’s campaign. Sessions said the issue didn’t rise to the level of appointing a special counsel.
But the picture of what Sessions is doing behind the scenes is increasingly suggesting that Trump’s very public hints that his attorney general should do this or that have often resulted in those specific actions. And especially when it comes to things such as trying to force out McCabe or reportedly dig up dirt on Comey, it sure makes it look like Sessions is using his authorities to try to address Trump’s political aims.
And for an attorney general who leads the federal law enforcement that is currently investigating the president and his team, that’s a perception problem, at best.”
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Read Blake’s full article, complete with “Tweet Texts,” at the link.
Meanwhile “chatter” surrounding the DOJ credits Sessions for doing a “bang up” job of implementing his racist, White Nationalist agenda at Justice. Basically, according to some, he’s very effectively shifting the Government’s resources, focus, and litigating capacity to insuring that no element of White privilege or far-Right religious intolerance goes unprotected.
At the same time, he’s using basically bogus or at least highly misleading “statistics” to “rev up” racist fervor against immigrant, primarily Latino communities and Democratic local officials who won’t go along with his program of attempting to draw false connections between immigrants and crime and terrorism. Meanwhile, he essentially has consigned the rights of African-Americans, Latinos, Immigrants, Migrants, Women who seek abortions, and the LGBTQ community to the “trash-bin of Justice.” Many who care about the future of racial equality and social justice in America are concerned that this type of “deep damage” to our justice system can’t easily be undone or repaired, even after Sessions and his “wrecking crew” finally depart the “Halls of Injustice.”
Reportedly, Sessions has been ably assisted in his campaign “to take the justice out of Justice” by Associate Attorney General Rachel B. Brand, the “number three” person at Justice. Brand, a former Assistant Attorney General for the Office of Legal Policy under Bush II, DOJ “vet,” and apparent “true believer” in the Radical Right, maintains a much “lower profile” than the ever controversial Sessions. But, apparently she and those under her excel at undoing and “deconstructing” all of the “social justice” achievements of the Obama Administration.
Following the “Watergate Disaster” in the 1970, where the Nixon Administration’s blatant politicization of the DOJ became a national scandal, succeeding Administrations, in my view, more or less “backed off” of obvious political partisanship at the DOJ. But, as Watergate becomes a “mere tiny image in the rearview mirror,” that “tradition of restraint” has gradually eroded. Sounds to me like the “Watergate Era” has basically returned to the DOJ. This time, and quite sadly for our Constitutional system of Government and the U.S. Justice System, there is some doubt as to whether it will ever depart again.
PWS
01-28-18
Debra Cassens Weiss reports:
“Judge Richard Posner had intended to stay on the federal appellate bench until he reached 80, an age he believed to be the upper limit for federal judges.
But on Friday, at the age of 78, he abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.
“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.
Posner said he did not time his retirement to allow President Donald Trump to appoint his replacement. “I don’t think it’s proper for judges or justices to make their decision to retire depend on whom they think the president will appoint as replacements,” he told the Law Bulletin. With Posner’s retirement, the 7th Circuit has four vacancies.
Posner was appointed by President Ronald Reagan in 1981, and was widely considered a conservative. He has since written more than 3,300 judicial opinions, and not all please conservatives, according to the Law Bulletin. On the one hand, he struck down the Illinois ban on carrying weapons in public, called for fewer restrictions on domestic surveillance, and limited class certification in class-action lawsuits. But he has also written opinions favoring abortion rights and same-sex marriage.
In a 2012 interview with National Public Radio, Posner said he has become less conservative “since the Republican Party started becoming goofy.” But he won’t remain above the fray in politics.
He told the Law Bulletin that his retirement will allow him to assist his cat, Pixie, in a run for president in 2020. Above the Law had endorsed Pixie last year, but Posner was unable to participate in the campaign.”
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Perhaps “Dickie The P” can take some time away from Pixie to visit the kangaroo courts that DOJ has established in prisons intentionally located in out of the way places where traumatized individuals seeking refuge from life-threatening conditions are held in substandard conditions and forced to represent themselves in “death penalty cases” involving some off the most complex and (intentionally) obtuse concepts in modern American law.
Love him or loathe him (or both), Posner is a prolific writer and thinker whose views can’t be ignored or swept under the table. What’s happening in the U.S. Immigration Courts under Sessions is a national disgrace. A high profile legal commentator like Posner, who frankly doesn’t care whom he pisses off, could shed some light on the travesty now passing for due process in the Immigration Courts and how too many of his former Article III colleagues have turned their backs on their constitutional duties rather than taking a strong legal stand against intentional abuse of the most vulnerable by our legal system. A voice like Posner’s advocating for an Article I Court would be heard!
PWS
09-08-15
Kim Soffen writes in the Wonkblog columns in the Washington Post:
“Senate Republican leaders unveiled their health-care bill Thursday morning, after weeks of crafting it behind closed doors. The bill keeps some popular parts of the Affordable Care Act, such as the provision preventing insurance companies from charging people more or denying them coverage based on pre-existing conditions, and eliminates some unpopular parts, such as the individual mandate which requires people to buy insurance or pay a penalty.
[What the Senate bill changes about Obamacare]
But those two provisions, taken together, are likely to send the individual marketplace into a “death spiral,” ending with only the sickest people insured, sky-high premiums, and insurers exiting the individual market, according to experts across the political spectrum. The bill has a $112 billion market stabilization fund to prevent this, but experts doubt it, or a similar measure in the House bill, would be enough.
Here’s how a death spiral would happen. People shopping for insurance in the individual market all sit on a spectrum from healthy to sick.”
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Lots of “neat” graphics with the full article. Clink the link and see the GOP’s plan to “deconstruct” American healthcare in action.
Sobering thought: Millions of Americans voted to destroy their own healthcare and endanger their own lives and those of family members who can’t vote. Unfortunately, their lack of prudence and sound judgment is likely to take the rest of us into the abyss with them. The “silver lining:” Guys like the Koch Bros, Tom Price, Wilber Ross, et. al. will pay lower taxes. (I didn’t include Trump in this list because there is no hard evidence that he currently pays, or ever again will pay, income taxes.)
PWS
06-24-17
http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e
Man, Nolan sure gets around in terms of different publications! And, he is both timely and highly relevant! Here, Nolan writes in HyuffPost:
“In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”
The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.
. . . .
The campaign statements that Judge Gregory uses to justify his decision can be used again and again to attack anything Trump does that has a negative impact on a country with a large Muslim population.
If the Supreme Court does not reverse Judge Gregory’s decision, other courts will follow suit and President Trump ultimately will be faced with the constitutional crisis of not being able to meet his national security responsibilities as the Chief of the Executive Branch with respect to terrorism coming from Muslim countries unless he defies the orders of the Judicial Branch.”
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Read Nolan’s complete article on HuffPost at the above link!
I appreciate Nolan’s helpful summary of what has happened to date on the “Travel Ban” litigation. Nevertheless, I disagree with his conclusion that the President will not be able to “meet his national security responsibilities as Chief Executive.”
I have little doubt that if there were a legitimate “national security” crisis, the Federal Courts would give the Executive considerable discretion to operate. President Trump’s problem is that there is no obvious national security crisis at present. Therefore, his attack on nationals of predominantly Muslim countries seems to be out of bounds, and motivated by religious animus and a desire to fulfill campaign promises, rather than by any legitimate national security considerations.
FPWS
05-29-17
http://www.abajournal.com/magazine/article/legal_logjam_immigration_court
Lorelei reports:
“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.
As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.
But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.
Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.
“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”
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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.
In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.
PWS
03/27/17