American Immigration Lawyers Association (“AILA”) – Page 7

9TH CIRCUIT’S CONTINUING SHAME: “Let ‘Em Die In Mexico” Program Was Ruled “Illegal From The Git Go” By Courageous U.S. District Judge – Then, 9th Intervened To “Open The Killing Fields” – Empowered By Appellate Judicial Complicity, DHS Agents Now Simply Commit Fraud On Asylum Applicants & Their Lawyers By Returning Them To Mexico With Fake Hearing Dates!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1e0901c7-ba27-4d78-a71a-823c2481d392

Gustavo Solis reports for the San Diego Union-Tribune:

By Gustavo Solis

Asylum seekers who have finished their court cases are being sent back to Mexico with documents that contain fraudulent future court dates, keeping some migrants south of the border indefinitely, records show.

Under the Migrant Protection Protocols policy, asylum seekers with cases in the United States have to wait in Mexico until those cases are resolved. The Mexican government agreed to accept only migrants with future court dates scheduled.

Normally, when migrants conclude their immigration court cases, they are either paroled into the United States or kept in federal custody depending on the outcome of the case.

However, records obtained by the San Diego Union-Tribune show that on at least 14 occasions, Customs and Border Protection agents in California and Texas gave migrants who had already concluded their court cases documents with fraudulent future court dates written on them and sent the migrants back to Mexico anyway.

Those documents, unofficially known as tear sheets, are given to every migrant in the Migrant Protection Protocols program who is sent back to Mexico. The document tells the migrants where and when to appear at the border so that they can be transported to immigration court. What is different about the tear sheets that migrants with closed cases receive is that the future court date is not legitimate, according to multiple immigration lawyers whose clients have received these documents.

This has happened both to migrants who have been granted asylum and those who had their cases terminated — meaning a judge closed the case without making a formal decision, usually on procedural grounds. Additionally, at least one migrant was physically assaulted after being sent back to Mexico this way, according to her lawyer.

Bashir Ghazialam, a San Diego immigration lawyer who represents six people who received these fake future court dates, said he was shocked by the developments.

“This is fraud,” he said. “I don’t call everything fraud. This is the first time I’ve used the words, ‘U.S. government’ and ‘fraud’ in the same sentence. No one should be OK with this.”

The Department of Homeland Security and Customs and Border Protection did not respond to multiple requests to comment about why they had engaged in the practice.

Ghazialam first noticed this in September, when three of his clients were sent back to Mexico after their cases were terminated on Sept. 17. After the judge made his decision, the family spent 10 days in Customs and Border Protection custody.

On Sept. 27, the family was given a document that read, in part, “At your last court appearance, an immigration judge ordered you to return to court for another hearing.” That piece of paper told them to return to court on Nov. 28.

However, the immigration judge ordered no further hearing. Ghazialam’s clients do not have a hearing scheduled on that or any other day.

To confirm Ghazialam’s claims, a reporter called a Department of Justice hotline that people with immigration court cases use to check their status and dates of future hearings. That hotline confirmed that the family’s case had been terminated on Sept. 17 and that “the system does not contain any information regarding a future hearing date on your case.”

“That date is completely made up and the Mexican authorities are not trained enough to know this is a fake court date,” Ghazialam said.

After being returned to Mexico, the mother was stabbed in the forearm while protecting her children from an attempted kidnapping. She still has stitches from the wound, Ghazialam said.

The mother presented herself at the border shortly after the stabbing. She told Customs and Border Protection agents that she was afraid to stay in Mexico. The agents gave her a fear of return interview and tried to send her back to Mexico.

But this time, Mexican immigration officials refused to let her and her children back into Mexico because they did not have a court date, Ghazialam said. She is currently with relatives in New York, waiting to figure out the future of her legal status in the United States while wearing an ankle monitor.

In most of these cases, immigration attorneys aren’t aware that their clients were sent back to Mexico until it’s too late.

In one case, a Cuban asylum seeker was returned to Mexico after an immigration judge in Brownsville, Texas, granted her asylum.

The woman’s lawyer, Jodi Goodwin, remembers hugging her client after the decision and arranging a place to meet after authorities released her later that day following processing.

Goodwin expected the process to take 45 minutes, so she went to a nearby Whataburger and ordered a chocolate milkshake. About 40 minutes later, she got a phone call from her client.

“She was hysterical and crying,” Goodwin said. “I’m like, ‘What happened?’ and she says, ‘I’m in Mexico.’ ”

Goodwin called U.S. and Mexican immigration authorities to try to find out what happened. She spent five hours at the border until 9 p.m. and then went home to draft a lawsuit. It wasn’t until she threatened to sue CBP that her client was paroled into the United States.

“It was total chaos for 24 hours to try to figure it out,” Goodwin said. “It shouldn’t be like that, especially when CBP is blatantly lying. They are creating documents that have false information.”

The American Immigration Lawyers Assn. said it was worried about the practice.

“The idea that even though these vulnerable individuals are able to obtain an asylum grant from an immigration judge and CBP is sending them back to harm’s way in Mexico is really disturbing, especially under the guise that there’s a future hearing date,” said Laura Lynch, senior policy counsel for the organization.

Mexico’s National Institute of Migration did not immediately respond to questions about this practice.

Although Ghazialam and Goodwin were able to eventually get their clients back into the United States, some people are still in Mexico.

That’s what happened to a Guatemalan woman and her two children after a judge terminated their case on Oct. 18. The same day the judge closed their case, a U.S. immigration official gave her a piece of paper with the false hearing date of Jan. 16.

“But this appointment does not exist,” said the woman’s New York City attorney, Rebecca Press. “If you check with the immigration court system, there is no January hearing date and the case has already been terminated.”

It’s unclear how widespread this practice is. Lawyers in San Diego; Laredo, Texas; and Brownsville confirmed they have seen it firsthand.

However, only about 1% of asylum seekers in the Migrant Protection Protocols program have lawyers. Therefore it’s difficult to track what happens to the overwhelming majority of the people in the program.

Lawyers said asylum seekers without legal representation who have been sent back in this manner probably have no way of advocating for themselves. It took Goodwin hours of calls to high-level officials in both U.S. and Mexican immigration agencies plus the threat of a lawsuit to get her client back into the United States.

“If you don’t have someone who’s willing to sit around and spend five hours on the phone and stay up all night drafting litigation to force their hand, you’re going to be stuck,” she said.

As news of these false hearing dates spread among the immigration attorney community, some lawyers are taking proactive steps to protect their clients from being returned to Mexico after their court cases are closed.

Siobhan Waldron, a Los Angeles lawyer, wrote a letter to Mexican immigration officials explaining that her client had no future hearing date and outlined a step-by-step process Mexican officials could take to verify that her client’s case had been closed by using the Department of Justice hotline.

The letter worked at first.

When CBP officers tried to return Waldron’s client to Mexico on Nov. 1 with a false January hearing date, her client showed the note to Mexican officials, who refused to take her in. However, the next day, CBP officers sent Waldron’s client back to Mexico with another false court date and this time did not allow her to show Mexican officials her lawyer’s letter that she kept in a special folder, Waldron said.

“They didn’t let her take it out,” Waldron said. “They said, ‘You can’t present anything from that folder.’ ”

The lawyer plans to file “any complaint you can imagine” to CBP, the Department of Homeland Security and other regulatory agencies because “these agents need to be held accountable.”

Her client is still in Mexico, too afraid to walk outside because she has already been kidnapped and assaulted, Waldron said.

Solis writes for the San Diego Union-Tribune.

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As my friend Laura Lynch points out, the individuals affected by this judicially-enabled outrage are not just “asylum applicants” – they include those who have been GRANTED ASYLUM as well as those whose removal proceedings were terminated because a U.S. Immigration Judge found that DHS ILLEGALLY SUBJECTED THEM to the “Let ‘Em Die In Mexico Program.”

The 9^th Circuit’s horrible and incompetent handling of Innovation Law Lab v. McAleenan will live in infamy as a monumental judicial abdication of duty that has actually harmed or killed innocent asylum seekers while inspiring DHS to new heights of illegal behavior and contempt for our entire legal system.

Why have a “Judicial Branch” that won’t stand up for individual legal rights in the face of Executive tyranny, overreach, and downright fraud? What are these robed folks doing to earn their lifetime paychecks? And, given the quality and philosophy of many of Trump”s judicial appointments, rammed through a corrupt GOP Senate by “Moscow Mitch,” these are questions the majority of Americans might be asking for decades to come!

PWS

11-08-19

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

Tanvi Misra reports for Roll Call:

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the border DHS advances plan to get DNA samples from immigrant detainees White House plans to cut refugee admittance to all-time low

Error! Filename not specified.

James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

Volume 90%

The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21^st Century America?

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”

We’re in a war for the survival of our democracy and the future of humanity. There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

PWS

10-31-19

NICOLE NAREA @ VOX: As Life Threatening Due Process & Statutory Violations Predictably Mount Under The Ninth Circuit’s “Let ‘Em Die In Mexico” Program, Congressional Dems Demand IG Investigation Of “Tent Courts,” A/K/A Kangaroo Courts!

https://www.vox.com/policy-and-politics/2019/10/18/20920000/house-democrats-investigation-tent-courts-border-port

House Democrats are calling for investigations into two temporary immigration courts that opened along the southern border last month where migrants who have been waiting in Mexico are fighting to obtain asylum in the US, according to a letter sent Thursday.

The courts — located in tent complexes near US Customs and Border Protection ports in Laredo and Brownsville, Texas — were built to hear cases from migrants who have been sent back to Mexico under President Donald Trump’s “Remain in Mexico” policy, officially known as the Migrant Protection Protocols.

Unveiled in January, the policy has affected over 50,000 migrants found to have credible asylum claims, including those who present themselves at ports of entry on the southern border and those who are apprehended while trying to cross the border without authorization.

The tent courts, which opened in early September with no advance notice to the public, have the capacity to hold as many as 420 hearings per day in Laredo and 720 in Brownsville conducted exclusively by video. Immigrants and their attorneys video conference with judges and DHS attorneys appearing virtually, streamed from brick-and-mortar immigration courts hundreds of miles away.

Democratic leaders, led by Congressional Hispanic Caucus chair Joaquin Castro, raised concerns Thursday that the tent facilities have led to violations of migrants’ due process rights by restricting their access to attorneys and relying on teleconferencing. They also expressed alarm that asylum seekers processed in the facilities are being returned to Mexico even though they are in danger there and that the public has largely been barred from entering the tent facilities, shrouding their operations in secrecy.

“Given the lack of access to counsel and the limitations of

, we are concerned these tent courts do not provide full and fair consideration of their asylum claims, as required by law,” the lawmakers wrote, urging the Department of Homeland Security and Department of Justice’s inspectors general to investigate. “The opening and operations of these secretive tent courts are extremely problematic.”

Few have been allowed to enter the courts

Acting Department of Homeland Security Secretary Kevin McAleenan had assured that members of the public and the press would be permitted to access to the facilities so long as they do not “disrupt proceedings or individuals’ privacy.”

In practice, however, that’s not how they have operated, and as House Democrats pointed out Thursday, preventing the public from viewing immigration court proceedings violates federal regulations.

“We are concerned that the administration has intentionally built these tent court at Customs and Border Protection ports of entry to justify limited public access to these facilities, and that this lack of transparency may allow DHS to hid abuse and due process violations that may occur in the tents,” their letter said.

Laura Lynch and Leidy Perez-Davis, attorneys with the American Immigration Lawyers Association who visited the port courts shortly after they opened in September, said they and other lawyers from the National Immigrant Justice Center, Amnesty International, and the Women’s Refugee Commission were barred from observing proceedings in the courts absent a document showing that they were representing one of the migrants on site.

The few attorneys that had such agreements were allowed to enter the facility a little more than an hour before their clients’ hearings to help them prepare — insufficient time given that, for many, it is their first opportunity to meet in person, Perez-Davis said.

In the first few days that the courts were open, the only people allowed in the hearing rooms were immigrants and their attorneys — but critically, not their translators, Lynch said. There were few attorneys representing asylum seekers in proceedings at the port courts, and even fewer spoke fluent Spanish and could have conversations with their clients.

Officials have since allowed translators into the hearing rooms, Lynch said, but neither DHS nor the DOJ have issued any formal clarification of their policy.

Attorneys are also not allowed to attend “non-refoulement interviews” at the tent facilities, in which an asylum officer determines, usually over the phone, whether a migrant should be sent back to Mexico or qualifies for an exemption allowing them to go to a detention facility in the US.

Limiting access to the port courts also inhibits legal aid groups’ ability to conduct presentations for migrants informing them of their rights in immigration proceedings, as they typically do in immigration courts.

Perez-Davis said that she observed one hearing from San Antonio — where some of the remote immigration judges handling cases in the ports courts are based — in which a young migrant woman was confused about what “asylum” means. That kind of knowledge would have previously been provided in presentations by legal aid groups.

Videoconferencing doesn’t facilitate a fair proceeding

The use of video conferencing in immigration court proceedings has long been a subject of controversy. In theory, teleconferencing would seem to make proceedings more efficient and increase access to justice, allowing attorneys and judges to partake even though they may be hundreds of miles away.

But in practice, advocates argue that teleconferencing has inhibited full and fair proceedings, with some even filing a lawsuit in New York federal court in January claiming that it violates immigrants’ constitutional rights.

Immigrants who appear in court via teleconference are more likely to be unrepresented and be deported, a 2015 Northwestern Law Review study found. Reports by the Government Accountability Office and the Executive Office of Immigration Review have also raised concerns about how technical difficulties, remote translation services, and the inability to read nonverbal communication over teleconference may adversely affect outcomes for immigrants.

Yet despite such research, the immigration courts have increasingly used video as a stand-in for in-person interaction.

In the port courts in Laredo and Brownsville, video substitutes for that kind of interaction entirely — but it has not been without hiccups so far.

Lynch, Perez-Davis, and Yael Schacher, a senior US advocate at Refugees International, said they all observed connectivity issues. For migrants who must recount some of the most traumatic experiences of their lives to support their asylum claims, video conferencing makes their task harder, Perez-Davis said.

“I have been asking myself what happens if you’re in the middle of the worst story you’ve ever had to tell, and the video cuts out?” she said.

These courts are sending immigrants back to danger in Mexico

Migrants are required to travel in the dark and show up for processing before their hearings at the port courts early as 4:30 in the morning.

That puts them at increased risk, with recent reports of violence and kidnappings in Nuevo Laredo, which is directly across the border from Laredo, and Matamoros, which is adjacent to Brownsville. The State Department has consequently issued a level four “Do Not Travel”warning in both Nuevo Laredo and Matamoros.

Lynch and Perez-Davis said that attorneys are also increasingly afraid of crossing the border into Mexico in light of those safety concerns. Where they used to cross over the border to deliver presentations informing migrants of their rights and the US legal process in Mexican shelters, that is no longer happening to the same degree.

“It has chilled any sort of ability to provide legal representation,” Perez-Davis said.

DHS purports to exempt “vulnerable populations” from the Remain in Mexico policy and allow them to remain in the US, but in practice, few migrants have been able to obtain such exemptions in non-refoulement interviews.

The advocacy group Human Rights First issued a report earlier this month documenting dozens of cases in which inherently vulnerable immigrants — including those with serious health issues and pregnant women — and immigrants who were already victims of kidnapping, rape and assault in Mexico were sent back under MPP after their interviews.

With attorneys barred from advocating for migrants in these interviews, migrants will likely continue to be sent back to Mexico even if they should qualify for an exemption under DHS’s own guidelines.

“These interviews are a basic human rights protection to ensure that no one is returned to a country where they would face inhumane treatment, persecution or other harm,” Democrats wrote Thursday. “We are concerned that DHS is returning asylum seekers to harm in Mexico.”

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This situation persists as a direct and predictable consequence of the Ninth Circuit’s atrocious decision staying the District Court’s properly issued injunction in Innovation Law Lab v. McAleenan!

As I told the US District Court, District of Rhode Island, 2019 District Conference on “Independence & the Courts” today:

Constantly Confront Complicit Courts 4 Change. Make the guys in the ivory tower “own” the deaths, human rights abuses, unrelenting human misery, and mockeries of justice that their intransigence and failure to carry out their oaths to faithfully support and defend the Constitution of the U.S. is causing to the most needy and vulnerable among us — that is, to those who have the audacity to assert their legal rights under our laws.

What good are “independent” courts who won’t stand up for our individual rights under the Constitution? “Independence” does not entitle judges to use their privileged positions to be complicit or complacent in the face of great tyranny and the human misery and irreparable harm it causes!

And, thanks to Nicole for “keeping on” this horrifying chronicle of calculated and premeditated human rights abuses by an Executive Branch “gone rogue,” and the disastrous real life human consequences of ivory tower appellate judges failing to perform their Constitutional duties. They will not escape the judgment of history for their unwillingness to stand up to the abuses of a White Nationalist regime carrying out a predetermined agenda totally unrelated to governing in the public interest or complying with the rule of law.

Also, many thanks too Laura and Leidy for having the courage and dedication to put themselves “on the line” to let us know exactly what’s happening as a result of the massive failure of all three branches of our Government.

Join the New Due Process Army and take the fight to preserve our American values and our Constitution to all three branches of Government until they do their duties and stop the illegal and unconstitutional abuses of asylum seekers!

PWS

10-18-19

MEET THE PRESS: NAIJ President Hon. A. Ashley Tabaddor & Others Appear @ National Press Club To Explain Need For Independent Article I U.S. Immigration Court In Light Of Trump Administration’s All-Out Assault On Due Process!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Dear NAIJ Members,

On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.

Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.

ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.

Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.

The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.

Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:

https://spaces.hightail.com/receive/RRowcRdtrK

For a sampling of the articles, please check out the NAIJ website at:

https://www.naij-usa.org/news

If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.

Sincerely,

Your NAIJ Executive Board

*******************************************************

Keep up the fight!

Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!

PWS

10-03-19

PROFILE IN JUDICIAL COWARDICE: ARTICLE III’S DERELICTION OF DUTY LEAVES BRAVE ASYLUM APPLICANTS AND THEIR COURAGEOUS ATTORNEYS DEFENSELESS AGAINST RACIST ONSLAUGHT BY TRUMP ADMINISTRATION! – “NDPA” Stalwarts Laura Lynch & Leidy Perez-Davis Blog Daily About What’s REALLY Happening At The Border As A Result Of JUDICIAL MALFEASANCE By Life-Tenured Federal Appellate Judges Who Were Supposed To Protect Our Rights, But Are Failing To Do So!

Here’s their blog from the “front lines” of the New Due Process Army’s battle to save lives in South Texas, updated daily:

https://thinkimmigration.org/blog/2019/09/16/due-process-disaster-in-the-making-a-firsthand-look-at-the-port-courts-in-laredo-and-brownsville/

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It’s beyond disgusting! Life-tenured judges who should know better becoming “Modern Day Jim Crows!” What truly horrible, negative “role models” for younger attorneys fighting for the rights of the most vulnerable and to uphold our Constitutional system.

Speaking of good role models (in addition, of course, to Laura and Leidy, who are among the “best ever”), Justices Sotomayor and Ginsburg should be congratulated for having the courage to speak out forcefully in Barr v. East Bay Sanctuary Covenant on the “right side of history” and against their colleagues’ disgraceful dereliction of duty and betrayal of their oaths to uphold the Constitution against all enemies, foreign and domestic.

And, there have been few greater enemies of the U.S. Constitution and the true “rule of law” than Trump and his band of political, bureaucratic, and judicial sycophants!

Due Process Forever, Cowardly Judging Never!

PWS

09-20-19

SUPREME DISGRACE: Instead Of Protecting The Individual Rights Of Our Most Vulnerable Asylum Seekers, The Supremes’ Majority Joins The White Nationalist Assault On Refugee Laws & Human Dignity!

Azam Ahmed
Bureau Chief, Mexico, Central America, the Caribbean
NY Times

https://apple.news/AzVf9gcH2QyOC67VugroXQg

By Azam Ahmed and Paulina Villegas

MEXICO CITY — Thousands of people fleeing persecution, most from Central America, line up at the United States’ southern border every day hoping for asylum. They wait for months, their names slowly crawling up a hand-drawn list until they are allowed to present their case to American immigration authorities.

After the United States Supreme Court issued an order this week, almost none of them will be eligible for asylum.

The Supreme Court on Wednesday allowed the Trump administration to enforce new rules that bar asylum applications from anyone who has not already been denied asylum in one of the countries they traveled through on their way to the United States.

The rule is among the most stringent measures taken by this administration in its battle to halt migration, upending decades of asylum and humanitarian norms. It is likely to affect hundreds of thousands of migrants traveling through Mexico to reach the United States: Eritreans and Cameroonians fleeing political violence. Nicaraguans and Venezuelans fleeing repression.

And the largest group of all: Hondurans, Salvadorans and Guatemalans escaping the twin scourges of poverty and gangs.

“This takes away all hope,” said Eddie Leonardo Caliz, 34, who left San Pedro Sula in Honduras with his wife and two kids three months ago to try to escape gang violence, and spoke from a shelter in southern Mexico. With measures like this, he said, the Trump administration “is depriving us of the opportunity to be safe.”

The new rule, which has been allowed to take effect pending legal challenges, is consistent with the Trump administration’s posture of hostility and rejection for those seeking protection in the United States.

Whether by separating families of migrants, by drastically limiting the number of asylum applications accepted on a given day or by returning those entering the United States to Mexico to await their hearings, the administration has shown a dogged determination to discourage migration.

Central American migrants at the Amar shelter in Nuevo Laredo in July.

Luis Antonio Rojas for The New York Times

And it has put tremendous pressure on Mexico to help meet its goal, threatening months ago to escalate tariffs on all Mexican goods if the nation did not buffer the surge of migrants heading to the United States from Central America and elsewhere.

Mexico responded. This week, when Mexican and American officials met in Washington to discuss progress on the issue, the Mexican delegation took great pains to show how its crackdown along its border with Guatemala and throughout the country has reduced migration flows to the United States by more than 50 percent in the last three months.

Mexico’s actions, though applauded by Trump administration officials this week, have overwhelmed its troubled migration system. The number of individuals applying for asylum in Mexico has already skyrocketed in the last few years, as the United States has tightened its borders.

This rule could add to that burden, with many more applying for asylum in Mexico, despite the danger of remaining in Mexico. Violence there has soared to the highest levels in more than two decades. Stories of migrants kidnapped along the border abound, as criminal organizations await their return from the United States or pick them off as they attempt to cross the border.

Several migrants who are making their way north said in interviews on Thursday that the new rule would not deter them. For most, the hope of a new life in the United States outweighed whatever legal worries might lie ahead.

“I know things are getting more and more complicated in the U.S.,” said Noel Hernández, 21, who was staying at a migrant shelter in Guatemala after leaving his home in Tegucigalpa, in Honduras, a few days ago.

“It’s like flipping a coin,” he said. “I either win or I lose.”

Others said they would try to make it in Mexico, despite the violence, or in Guatemala, a nation with a barely functional asylum system.

Oscar Daniel Rodríguez, 33, from San Salvador, has been in Guatemala with his wife and 3-year-old son for a month now, and says he will apply for asylum there.

He had applied for asylum in Mexico during a previous trek, and was rejected. If he is denied in Guatemala, he will try again in Mexico, he said. If they deny him again, he will try the United States.

Migrants from a caravan, along with organizers and legal observers, at the pedestrian crossing that will lead them to the U.S, in 2018.

Meghan Dhaliwal for The New York Times

“No matter how long it takes, and how long we have to wait, what we want is to give our son a better future,” he said.

Mexican asylum applicants, who don’t have to transit through another country to reach the United States, are not impacted by the new policy.

Like past efforts by the Trump administration to curb migration, Wednesday’s order could prove a burden for Mexico.

A senior Mexican official who spoke anonymously because the government has not addressed the issue publicly said that, for now, individuals who seek to apply will not fall under a previous provision, called Migrant Protection Protocol. That provision sends those applying for asylum in the United States back to Mexico to await their hearings.

Instead, migrants will either have to apply for another form of relief in the United States — with a higher bar for acceptance and fewer protections — or be deported back to their home countries.

Mexico is already playing host to tens of thousands of migrants awaiting their asylum hearings in the United States. Its migrant detention facilities can be overcrowded, unsafe and unsanitary.

Asylum applications there have soared in the last year, reaching about 50,000 through August, compared to fewer than 30,000 applications in the same period a year ago. This has placed a strain on Mexican society and on a system ill-equipped to handle such demand.

“We see detention centers crammed with migrants and children, riots, social problems arising, human rights abuses, and rising xenophobia among Mexicans,” said Jorge Chabat, a professor of international relations the University of Guadalajara. “The Mexican government has then little to no other choice but to design long-term migration policies to deal with the large number of migrants coming and staying now in Mexico.”

“There is not much else we can do,” he added, ruefully, “besides maybe lighting a candle for the Virgin of Guadalupe and praying for Trump not to be re-elected.”

Raftsmen wait for clients at a river crossing between the Guatemala-Mexico border.

Luis Antonio Rojas for The New York Times

The initial rule to block asylum sent shock waves among immigrant rights advocates when it was issued by the Trump administration in July of this year. It was almost immediately challenged in lawsuits.

The initiative was a unilateral move by the Trump administration after failed negotiations with Mexico and Guatemala to reach deals, called safe third country agreements, that would have required those countries to absorb asylum seekers who passed through them on their way to the United States.

Though Guatemala eventually caved to the administration’s pressure, and reached a safe third country agreement with the United States, Mexico remained firm in its refusal.

Now, with the Supreme Court allowing the asylum rule to go into effect, some feel the United States got what it wanted anyway — without the other countries’ consent.

“This is the latest step in terms of Trump’s policies to push Mexico to become a safe third country, and to make a big chunk of the migration flow stay in Mexico permanently and deter them from traveling north,” said Raúl Benítez, a professor of international relations at the National Autonomous University of Mexico.

The Mexican government, for its part, insists the move is not the same as a safe third country arrangement, which would require a bilateral agreement and would automatically send the majority of asylum seekers back to Mexico for good.

Neither Mexican officials nor independent experts believe it will lead to an immediate influx of returnees to Mexico. Instead, it could leave those who have been returned to Mexico while they await hearings more likely to stay because they will not be granted protection in the United States.

While the new rules will inhibit most migrants from applying for asylum, there are other forms of protected status that remain open to them, though the bar to entry is much higher.

Under current asylum law, individuals must show a credible fear, which is figured to be a 10 percent chance that they will face persecution if sent back home. The threshold for the two remaining protections now — so-called withholding status and qualification under the convention against torture — is reasonable fear. To qualify, the applicant must show a probability of being persecuted back home that is greater than 50 percent.

“The people affected by this policy are the most vulnerable — those without lawyers and those without knowledge of the system,” said Aaron Reichlin-Melnick, an immigration attorney with the Immigration Council. “Those without lawyers are being asked to meet a standard almost impossible for someone uneducated in asylum law to meet.”

Daniele Volpe contributed reporting from Guatemala City.

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So, just why are Justices like Breyer and Kagan tarnishing their legacies by joining with their White Nationalist enabling brethren in this all out assault on the Refugee Act of 1980, the Due Process and Equal Protection Clauses of the U.S. Constitution, Human Rights, and human dignity?

The latest Trump Administration illegal absurdity encouraged, aided, and abetted by the Supremes: Honduras, one of the most dangerous and corrupt refugee sending countries in the world without a functioning asylum system, as a “Safe Third Country.” Obviously, the actions of an Administration confident that the majority of the Supremes share their corruption and cowardice when it comes to enforcing America’s long-standing human rights obligations.

Although it might not have occurred to the geniuses of the Trump Administration, and certainly not to the Supremes’ majority who apparently believe themselves exempt from the practical consequences of their actions, each of the failed states in the Northern Triangle has a seacoast which would allow ocean transit to the U.S. without touching any other country. So, the Trump White Nationalists and their Supreme enablers could be triggering another “Golden Venture” debacle or the type of even more dangerous sea exodus that happened in the Mediterranean when the EU restricted asylum applicants at its land borders.

Or, it’s possible that smugglers will simply “sell” refugees on the very plausible idea that the U.S. refugee system and our commitment to the “rule of law” is nothing but a joke. In that case, smuggling individuals into the interior of the U.S will become an even bigger business. No way they will ever all be caught, even with ICE acting as Trump’s “New American Gestapo.” Higher risk means more profits for smugglers, more death and exploitation for migrants, and more unscreened “extralegal migration” into the U.S.

Up until Trump, the U.S. had been lucky. Most asylum seekers presented themselves at ports of entry or nearby Border Patrol Stations and trusted themselves to the U.S. asylum system for orderly processing. Even those who managed to enter the U.S. usually “affirmatively applied” through the USCIS Asylum Offices.

The current mess in the legal system was almost entirely self-created by the “malicious incompetence” on the part of the Government’s immigration enforcement authorities. The “new message” is clear: only fools should use the US legal system, which in the case of asylum now more closely resembles a Third World dictatorship.

Once folks abandon the U.S. legal system, all of the land and sea borders and indeed the entire land mass of the U.S. will potentially “come into play” for smugglers and their desperate human cargoes of forced migrants. No wall will be long and high enough, no jail cells big enough, no child abuse severe enough, and no extralegal Supreme Court endorsed racist program nasty enough to control the flow of forced migrants seeking shelter. It might well lead to an internal police force that will trample the individual rights of all Americans. But, it won’t stop human migration until the U.S. downward spiral finally reaches the point where we are no better than the “sending countries” from which people are fleeing.

The other possibility is that conditions in the sending countries improve over time so that most folks will stay put. But, the Administration has shown no interest in investing in long term solutions to forced migration.

Immigration is a sign of a strong country; xenophobia a weak and cowardly one. Unhappily, the Supremes have have abandoned the former vision and become front and center in encouraging and enabling the latter.

PWS

09-13-19

TAL @ SF CHRON TAKES US INSIDE EOIR’S LATEST ASSAULT ON DUE PROCESS: Lack Of Live Interpretation Causing Confusion, Delays, Misinformation, & Denials Of Fundamental Fairness In U.S. Immigration Courts — Bogus “Court” System Continues To Make Major Changes Diminishing Due Process Without Consulting Judges, Attorneys, Or The Affected Individuals!

Tal Kopan reports for the SF Chron:

https://www.sfchronicle.com/politics/article/Confusion-delays-as-videos-replace-interpreters-14414627.php

Confusion, delays as videos replace interpreters at immigrants’ hearings

By Tal Kopan

WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.

The Justice Department informed immigration judges in late June that it would replace in-person interpreters at the first court appearance for immigrants facing deportation with videos advising them of their rights. The switchover began in July.

So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.

It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”

Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.

After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.

At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.

Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.

Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.

Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.

One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.

Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.

With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.

The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.

Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.

Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.

The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.

Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.

Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.

“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”

Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.

“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.

Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.

“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”

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Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”

This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.

Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡

PWS

09-05-19

IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control

Julia Preston reports for The Marshall Project:

By JULIA PRESTON

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.

************************************

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!

Also, the 975,298 “docketed” cases in the backlog (according to TRAC, as of 07-31-19) DOES NOT include most of the approximately 330,000 “Administratively Closed” cases that Sessions and Barr have idiotically tried to “force” back on the already-backlogged dockets. This week, the Fourth Circuit “called out” this illegal nonsense by emphatically rejecting Sessions’s scofflaw ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). This development was reported in “Courtside” yesterday. https://immigrationcourtside.com/2019/08/29/gonzo-apocalyopto-slammed-unanimous-panel-of-4th-cir-rejects-matter-of-casto-tum-exposes-irrationality-of-biased-unqualified-restrictionist-former-ag/.

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.

PWS

08-30-19

THE “GOOD GUYS” STRIKE BACK: NAIJ, AILA Issue Statements Strongly Condemning Administration’s Attempt to “Decertify” Immigration Judges’ Union!

NAIJ Press Release on Attempt to Decertofu 8-12-19

For immediate release – August 12, 2019

Contact: Jamie Horwitz,jhdcpr@starpower.net, 202/549-4921

Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges

Retribution for Speaking Out and Exposing Problems in the Courts

Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence

WASHINGTON — On Friday, August 9, the U.S. Department of Justice filed legal documents with the Federal Labor Relations Authority (FLRA) seeking to eliminate the rights of federal Immigration Judges (IJs) to be represented by a union. The petition filed by the administration asserts that IJs are “management officials” who formulate and advance policy.

“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hears cases in Los Angeles, speaking in her capacity as the president of the National Association of Immigration Judges (NAIJ). “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff,” she added.

The nation’s immigration courts are not part of the judicial branch of the government. The courts where immigration cases are heard are managed by the DOJ, allowing the

nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power to hire, fire, and control the judges who preside over immigration hearings.

Over the past two years, NAIJ has been highly critical of the administration’s moves to create a quota of 700 cases per year for every IJ and to pressure judges to process cases faster, irrespective of the law and the facts of the case. The NAIJ has also documented and publicly commented on how the government shutdown earlier this year added to the case backlog. Other issues raised by the NAIJ during the Trump years have included challenges to the Attorney General’s stripping IJs of needed docket management authority and depriving IJs of adequate support staff and resources such as interpreters, courtrooms, law clerks, and access to current technology. The move to decertify NAIJ is a clear effort to thwart criticism.

“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t even have the authority to order pencils.”

This is not the first time that the DOJ has floated the theory that Immigration Judges are managers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’ union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since that decision, the role and responsibilities of IJs has further been reinforced as trial judges rather than as managers. In the last two years, for example, the DOJ has eliminated any opportunity for IJs to serve in an advisory capacity to management officials and has repeatedly refused even to consult NAIJ on decisions affecting daily court operations. Additionally, the docket schedule of each IJ is micromanaged to advance law enforcement priorities rather than priorities or scheduling set by an individual judge.

NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a much larger union that represents thousands of highly-educated federal employees including NASA rocket scientists, engineers employed by the U.S. Navy and the Army Corp of Engineers, and administrative law judges who hear cases involving Social Security claims. According to IFPTE’s president Paul Shearon, “This is nothing

more than union busting plain and simple, and part of a disturbing pattern. The White House has

signed a series of executive orders that limit the ability of federal unions to raise questions about abuses and inefficiencies, and they have tried to hinder a union’s ability to fully represent federal workers who are often stuck in a bureaucratic maze.” Added Shearon, “This administration doesn’t want to be held accountable, and they especially don’t want anyone looking over their shoulder on immigration issues.”

“It’s in the best interests of the American people for judges to hear cases based solely on the law and the facts presented, free from political considerations,” said Judge Tabaddor. “This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocated for Immigration Judges to be placed in an independent agency, similar to the nation’s bankruptcy and tax courts, rather than under the control of the DOJ. In recent months, this move to create an independent agency to operate the immigration courts has been gaining traction on both sides of the aisle in Congress.

“We think many on Capitol Hill, from both parties, will oppose this effort to mute the nation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, we will redouble our efforts to maintain judicial independence and due process through the creation of an independent court. The DOJ’s actions, designed to silence judges and their union, further demonstrates why judges who hear immigration cases need to be placed in an independent agency. Our rallying cry as we make the rounds in the halls of Congress will be ‘remember August 9’.”

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

# # #

******************************************************

AILA – AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independen

AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independence

AILA Doc. No. 19081591 | Dated August 15, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Tessa Wiseman
202-507-7661
twiseman@aila.org

WASHINGTON, DC – On Friday, August 9, 2019, the U.S. Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ asserts that immigration judges should be considered “management officials” and therefore should be excluded from forming or joining labor unions. The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of our nation’s immigration judges, deemed DOJ’s claim as “absurd” and said that DOJ’s actions are “designed to silence judges and their union.” Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) of the House Judiciary Committee also decried the move in a statement this week.

Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA) responded, “DOJ’s petition to decertify the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.

Congress must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ. Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system. America can no longer afford to have a system that can be so easily manipulated. AILA urges Congress to pass legislation establishing an independent immigration court under Article I of the Constitution.”

Cite as AILA Doc. No. 19081591.

**********************************************

An outrageous waste of our taxpayer money, abuse of our legal system, and unlawful attempt to silence the Administration’s critics. Note that the ONLY U.S. Immigration Judges who have a right to “speak out” against the fraud, waste, and abuse of the system by the current Administration (in other words, to “speak truth”) are senior officials of the NAIJ.

The DOJ and EOIR have effectively “muzzled” the rest of the active Immigration Judges. They are not allowed to speak to the press. Under this Administration, they aren’t even allowed to participate in educational programs and seminars aimed at educating the public about practice before the Immigration Courts.

Yet, while treating the judges little better than well-paid but overworked clerks, the Department of Justice asserts, with a straight face, that they are “management officials.” Just what, one might ask, are they “managing?”

Moreover, since judges generally need support but little if any day to day “management” in a functioning system (I wonder how much time Chief Justice Roberts spends “managing” his colleagues or how much time any Chief Judge in a legitimate system spends “managing” his or her judicial colleagues), what’s the purpose of the bloated management structure in the “EOIR Tower” in Falls Church, VA?

The real needs of the Immigration Judges — more clerks, more time off the bench to prepare, more educational opportunities, better equipment, better courtrooms, less time spent on non-productive work like reporting progress on case quotas — remain unaddressed by what passes for “management” at today’s EOIR. The filing of this meritless “decertification petition” by EOIR appears to be yet another in the long series of disingenuous efforts by DOJ and EOIR to deflect attention from their own gross mismanagement of the Immigration Court system that has helped to create monumental, unprecedented backlogs even as more resources are thrown into the maelstrom.

A truly horrible system — essentially a “Rube Goldberg Contraption — that must be abolished by Congress and reinstituted as an independent Article I Court dedicated to delivering “Due Process with efficiency.”

Due Process forever; malicious incompetence never!

PWS

08-19-19

AILA CONDEMNS BARR’S LATEST COWARDLY EXTRALEGAL ATTACK ON VULNERABLE ASYLUM SEEKERS — “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum.”

Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President

AG’s Decision Ignores Precedent and Is the Latest Attempt to Restrict Asylum

AILA: AG’s Decision Ignores Precedent and Is the Latest Attempt to Restrict Asylum

AILA Doc. No. 19072905 | Dated July 29, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Belle Woods
202-507-7675
bwoods@aila.org

WASHINGTON, DC — On July 29, 2019, Attorney General (AG) William Barr issued a precedent decision in Matter of L-E-A- and announced that in his view, families cannot be considered a particular social group (and thus grounds for asylum) unless they are recognized by society as such.

AILA Second Vice President Jeremy McKinney stated, “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum. Courts, like the 4th Circuit Court of Appeals in Richmond, Virginia, have voluminous case law directly contradicting the Attorney General’s decision today.

“The impact of AG Barr’s decision, along with the other decisions issued by his immediate predecessors on asylum and the nation’s immigration courts, cannot be overstated. Last summer, the AG issued Matter of A-B- attempting to end the category of persecution – essentially restricting domestic violence victims and other victims of crimes perpetrated by private, non-government actors from their ability to qualify for asylum. Today, the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder. Clearly, our nation needs an independent immigration court system separate from the Department of Justice.”

Cite as AILA Doc. No. 19072905.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

****************************************************

Cowardice is the very definition of when those in power whose job and solemn duty is to protect and vindicate the rights of others, particularly the most vulnerable among us like refugees, instead grossly abuse their power by picking on them, bullying them, and abusing them. Whether or not Barr and the other White Nationalist restrictionists in the Trump Administration are committing actual crimes under U.S. law, they are certainly guilty of “crimes against humanity” in any normal sense of the word.

It is for legal scholars, historians, and moral philosophers to insure that Trump, Pence, Barr, Sessions, “Cooch Cooch,” “Big Mac With Lies,” Miller, Nielsen, Kelly, Homan, Morgan, and others who have enthusiastically supported and enabled this debacle do not escape the negative judgements of history!

PWS

07-30-19

AILA’S LAURA LYNCH SPEAKS OUT AGAINST BARR’S LATEST ASSAULT ON DUE PROCESS IN IMMIGRATION COURT — The System Has Become A Public Travesty That Insults Our Constitution — Why Are The Article IIIs Damaging Their Legacy By Enabling This Ugly Charade? — What Good Is Life Tenure If It Comes Without Backbone & Integrity?

https://www.aila.org/advo-media/press-releases/2019/aila-ag-attempts-power-grab-over-immigration

Here is AILA’s Statement:

AILA: AG Attempts Power Grab over Immigration Appeals

https://www.aila.org/advo-media/press-releases/2019/aila-ag-attempts-power-grab-over-immigration

AILA Doc. No. 19070236

AILA: AG Attempts Power Grab over Immigration Appeals

AILA Doc. No. 19070236 | Dated July 2, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Belle Woods
202-507-7675
bwoods@aila.org

WASHINGTON, DC – On July 2, 2019, Attorney General (AG) Barr published a final rule, further expanding his authority to reshape immigration law. The rule was issued in a highly unusual manner by resurrecting an old proposed regulation from 11 years ago and making it final within 60 days without any opportunity for public comment.

AILA President Marketa Lindt said, “This regulation exemplifies why the immigration courts should not be housed under the Department of Justice (DOJ). Under this administration, the AG has already utilized the certification power in an unprecedented manner to unilaterally strip immigration judges of basic operational authorities, interfere with judicial independence, and even attempt to rewrite asylum and detention laws. The American legal system is designed with fundamental procedural protections, such as briefing by the parties, to ensure the decision maker-here the AG-hears all points of view before deciding an important case. This new rule, however, authorizes the AG to singlehandedly designate Board of Immigration Appeals (Board) decisions as precedent – and do so literally overnight bypassing the necessary legal procedures and without any checks and balances.”

AILA Executive Director Benjamin Johnson added, “This is the most aggressive effort to unify control over the immigration courts in 20 years; I have never seen an administration claw back a discarded rule like this in order to further assert its power. The scope of this power grab could be immense. This rule attempts to shield decisions issued by the Board – including decisions for which the Board didn’t even bother to write an opinion – from federal court review and tries to force the U.S. Courts of Appeals to presume that the Board reviewed all the available information and claims made by the parties even if there’s nothing to show the Board did so. Simply put, the AG will have more power with less oversight, and immigrants’ right to appeal to the federal courts will be far more limited. This attack on the judicial branch proves further that our nation urgently needs an independent immigration court system separate from the Department of Justice. Nothing less will suffice.”

Cite as AILA Doc. No. 19070236.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

*******************************************

Thanks, Laura, for speaking out!

Every Court of Appeals Judge who signs off on one of these constitutionally defective removal orders produced by EOIR, an illegitimate “court” that functions without either fundamental fairness or impartiality under procedures that no such judge would accept if applied to them or their loved ones, should hang his or her head in shame.

Once the Trump nightmare is over, courage and integrity to stand up against Government overreach should be the touchstone for all future Article III judicial appointments. No more “go along to get along” Federal Judges at any level of the system! The Judicial Branch was actually conceived and established as a protector of liberty and justice against tyranny, not as an enabler of, and apologist for, “abuses by the Crown” (or in this case, “the Clown”).

What kind of “judge” stands by and watches while empowered cowards like Trump and Barr unconstitutionally “beat up” on America’s most vulnerable who seek only the basic justice and fairness that our Constitution supposedly guarantees to “all persons.” Judges who allow the dehumanization and “de-personification” of others, in others words “Dred Scottification,” might someday find themselves and those they actually care about becoming “Dred Scott” by their dereliction of duty!

PWS

07-03-19

DUE PROCESS: “Roundtable of Former Immigration Judges” Gets AILA Award For Due Process Advocacy!

https://www.aila.org/advo-media/press-releases/2019/aila-presents-the-roundtable-of-former-immigration

AILA Presents the Roundtable of Former Immigration Judges with the 2019 Advocacy Award

AILA Doc. No. 19062032 | Dated June 19, 2019

CONTACTS:

George Tzamaras

202-507-7649

gtzamaras@aila.org
Belle Woods

202-507-7675

bwoods@aila.org

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) will recognize the Roundtable of Former Immigration Judges, with the 2019 Advocacy Award for outstanding efforts in support of AILA’s advocacy agenda. The roundtable will accept the award this week during AILA’s Annual Conference in Orlando, FL.

The Round Table of Former Immigration Judges was formed in June 2017 when seven former Immigration Judges and BIA Members united for an amicus brief in Matter of Negusie. In the two years since, the group has grown to more than 30 members, dedicated to the principle of due process for all. Its members have served as amici in 14 cases before six different circuit courts, the Attorney General, and the BIA. The group has made its voice heard repeatedly in support of the rights of victims of domestic violence to asylum protection, and has also lent its arguments to the issue of children’s need for counsel in removal proceedings, the impact of remote detention in limiting access to counsel, and the case against indefinite detention of immigrants. The Round Table of Former Immigration Judges has submitted written testimony to Congress and has released numerous press statements. Its individual members regularly participate in teaching, training, and press events.

Cite as AILA Doc. No. 19062032.

And here are Judge Chase’s “acceptance remarks” in behalf of our entire group:

Thank you; we are humbled and honored to receive this award. Due to the time constraints on our speeches, I don’t have time to either name all of the members of our group, or to thank all those to whom thanks is due. So I will do that in a blog post.

In terms of advocacy, we are all advocates – everyone in this room, all AILA members. The past experience of our group as former judges gives us more of a platform. But it is a special group, in that so many have chosen to spend their post-government careers or their retirement actively fighting to make a difference in these trying times.

In fighting to make that difference, we must all speak for those who have no voice, and must serve as the conscience in a time of amoral government actions. Those whom we advocate for had the courage and strength to not only escape tragedy and make their way to this country, but once here, to continue to fight for their legal rights against a government that makes no secret of its disdain for their existence. We owe it to them to use our knowledge and skills to aid them in this fight.

In conclusion, I will quote the response of one of our group members who isn’t here tonight upon learning of this award: “It’s nice to be recognized. Now let’s get back to work.”

Thank you all again.

************************************

Congrats to all of my 30+ wonderful colleagues in “The Roundtable.” It’s an honor to be part of this group. Also, many, many thanks to all of the firms and individual lawyers who have provided hundreds of hours of pro bono assistance to us so that we could have a “voice.” It’s been a real team effort!

PWS

06-21-19

AMERICA’S SHAME: Congress Dithers, Life-Tenured Article III Circuit Judges & Supreme Court Justices Shirk Their Duty, While Trump’s “False Courts” Violate Constitutional, Statutory, Treaty, & Human Rights On A Daily Basis With Impunity! — History Will Remember Those Who Are Complicit In & Who Are Morally Responsible For Unlawful Killings & Other Unspeakable Acts Committed Against Those Most Vulnerable Who Are Merely Seeking Fairness Under Our Broken & Fraudulent Justice System!

NEW REPORT EXAMINES WEAPONIZATION OF IMMIGRATION COURT SYSTEM

Advocates Launch Immigration Court Watch App to Ensure Greater Accountability, Transparency.

No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.

Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.

PWS

06-12-19

PWS

06-12-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them; illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the “best ever.” I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University. In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, what’s the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
2
AILA Doc. No. 19051438. (Posted 5/14/19)

corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
3
AILA Doc. No. 19051438. (Posted 5/14/19)

6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
4
AILA Doc. No. 19051438. (Posted 5/14/19)

33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
5
AILA Doc. No. 19051438. (Posted 5/14/19)

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Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Tessa Wiseman 202-507-7661 twiseman@aila.org

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Belle Woods 202-507-7675 bwoods@aila.org

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Belle Woods 202-507-7675 bwoods@aila.org

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