Judicial Review – Page 81 – immigrationcourtside.com

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

SCOFFLAW SESSIONS LOSES AGAIN ON SANCTUARY CITIES – 7TH CIRCUIT FINDS SESSIONS’S ACTIONS UNCONSTITUTIONAL “Usurpation Of Power” — City of Chicago v. Sessions

Trump and Sessions lose another sanctuary cities case

By: Tal Kopan, CNN

A federal appeals court struck another blow Thursday to the Trump administration’s efforts to pressure sanctuary cities, upholding a court order preventing the Justice Department from imposing conditions on grants to cities.

The three-judge panel from the 7th US Circuit Court of Appeals upheld a lower court’s decision blocking the Justice Department from adding new conditions on policing grants that had required some cooperation with federal immigration enforcement.

The ruling makes it the latest federal court, along with courts in California and Philadelphia, to restrict what the administration can try to do to pressure jurisdictions that restrict some cooperation with federal immigration enforcement.

It comes as President Donald Trump has been targeting his fury on Twitter at sanctuary cities, which administration officials accuse of jeopardizing public safety.

The judges sided with the city of Chicago in the case, which had challenged Attorney General Jeff Sessions’ July effort to condition the Edward Byrne Memorial Justice Assistance Grant Program on two new requirements: allowing federal immigration authorities access to local detention facilities and providing the Department of Homeland Security with at least 48 hours’ notice before local officials release an undocumented immigrant wanted by federal authorities.

The administration has been aggressive in asking cities to comply with those requests, but a number of cities and police chiefs around the country argue that cooperating in that way could jeopardize the trust police need to have with local communities, and in some cases could place departments in legal gray areas.

Like the district judge, the appellate judges found that Chicago was likely to succeed in its case that such conditions would be a violation of the Constitution and law, as Congress did not authorize those conditions when it created the grants.

The judge who wrote the opinion called the attorney general’s move a “usurpation of power.”

More: http://www.cnn.com/2018/04/19/politics/court-rules-against-trump-sessions-sanctuary-cities-chicago/index.html

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Our Attorney General continues to thumb his nose at the Constitution while wasting judicial time. That’s what the “rule of law” means in “Gonzoland.”

Here’s a link to the 7th Circuit’s full decision written by Judge Rovner.

7thChicagoSanctuaryInjunction

PWS

0-9-18

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

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SESSIONS v. DIMAYA Syllabus

sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

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SESSIONS v. DIMAYA Syllabus

because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

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4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

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Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

GONZO’S WORLD: Scofflaw Sessions Rapped Again For Violating Constitution On His “Sanctuary Cities” Nonsense! — “But there is no evidence of record, and Defendants do not argue, that Defendants based this conclusion on any findings or data. Therefore, the Court cannot conclude that Defendants had a “reasonable basis” for imposing the Challenged Considerations.”

https://www.nytimes.com/2018/04/12/us/justice-department-police-immigration-california.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Jennifer Medina reports for the NY Times:

LOS ANGELES — The Justice Department cannot require that local police departments help immigration agents in order to receive federal funding, a federal judge has ruled. The ruling is a significant victory for local governments that have opposed the Trump administration’s stance on immigration and vowed to stay out of enforcement efforts.

United States District Judge Manuel Real in Los Angeles issued a permanent, national injunction against the federal funding rules, giving the city an important win in a long-running legal battle with Attorney General Jeff Sessions and the White House.

The ruling is “a complete victory,” Mike Feuer, the Los Angeles city attorney, said Thursday. “This is yet another dagger in the heart of the administration’s efforts to use federal funds as a weapon to make local jurisdictions complicit in its civil immigration enforcement policies.”

A Justice Department spokesman, Devin M. O’Malley, suggested an appeal was likely.

The federal government is legally entitled to give priority in its grant funding to local governments “that prioritize the safety of their communities and their law enforcement officers when they promise to cooperate with federal immigration authorities seeking information about illegal aliens who have committed crimes,” he said in a statement.

“Unfortunately,” he added, “the court not only rejected this common-sense conclusion, but it chose to issue a permanent nationwide injunction that is overbroad and inconsistent with the rule of law. We look forward to continuing the strong defense of our position.”

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Los Angeles has received millions of dollars under a federal program to promote community policing.CreditMonica Almeida/The New York Times

The ruling handed down Wednesday came in one of several lawsuitsthat state and city officials in California have filed against the federal government arguing that it has overreached in trying to force local officers to help with immigration enforcement.

“The Trump administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws,” Xavier Becerra, California’s attorney general, said last year when the state filed a lawsuit against the administration for denying funding to so-called sanctuary cities.

Last month, a federal district judge declined to issue a preliminary injunction against the federal government in that case, saying that the courts in other parts of the country had reached different conclusions and that “issues in this case will benefit from further development.”

After that ruling, the Trump administration filed its own lawsuit against California over its own “sanctuary state” law, which prevents the police in many cases from holding people at the request of federal immigration agents, and limits the sharing of information about the release of some county jail inmates who are in the country illegally. In its suit, the federal government argues that the law makes it impossible for immigration officers to do their jobs. A hearing in the case is scheduled for late June.

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

Read the complete article at the link.

The losses just keep piling up for Gonzo & Co. And, not surprisingly, the inability of Gonzo to provide anything approaching a rational basis for his actions is a continuing problem.

He’s a guy whose career has been based on bias and racism. And, when that’s the only unstated rationale for a program, many Federal Courts are seeing right through the ruse. No, terrorizing communities and destroying relationships that have taken decades or more to build is not about effective law enforcement! It’s all about racism and bias.

Here’s a link to Judge Real’s decision in City of Los Angeles v. Sessions

https-ecf-cacd-uscourts-gov-doc1-031127943445

PWS

04-14-18

DIANNE SOLIS @ DALLAS MORNING NEWS DETAILS GONZO’S ALL-OUT ASSAULT ON INDEPENDENCE OF U.S.IMMIGRATION JUDGES AND DUE PROCESS IN OUR IMMIGRATION COURTS –“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.”

https://www.dallasnews.com/news/immigration/2018/04/10/immigration-judges-attorneys-worry-sessions-quotas-will-cut-justice-clogged-court-system

Dianne writes:

“A case takes nearly 900 days to make its way through the backlogged immigration courts of Texas. The national average is about 700 days in a system sagging with nearly 700,000 cases.

A new edict from President Donald Trump’s administration orders judges of the immigration courts to speed it up.

Now the pushback begins.

Quotas planned for the nation’s 334 immigration judges will just make the backlog worse by increasing appeals and questions about due process, says Ashley Tabaddor, Los Angeles-based president of the National Association of Immigration Judges.

Quotas of 700 cases a year, first reported by The Wall Street Journal, were laid out in a performance plan memo by U.S. Attorney General Jeff Sessions. They go into effect October 1.

Some have even called the slowdown from the backlog “de facto amnesty.”

“We believe it is absolutely inconsistent to apply quotas and deadlines on judges who are supposed to exercise independent decision-making authority,” Tabaddor said.

“The parties that appear before the courts will be wondering if the judge is issuing the decision because she is trying to meet a deadline or quota or is she really applying her impartial adjudicative powers,” she added.

. . . .

Faster decision-making could cut the backlog, but it also has many worried about fairness.

The pressure for speed means immigrants would have to move quickly to find an attorney. Without an attorney, the likelihood of deportation increases. Nationally, about 58 percent of immigrants are represented by attorneys, according to Syracuse’s research center. But in Texas, only about a third of the immigrants have legal representation.

Paul Schmidt, a retired immigration judge who served as chairman of the Board of Immigration Appeals for immigration courts for six years, says he saw decisions rendered quickly and without proper legal analysis, leaving it necessary for many cases to be sent back to the immigration court for what he called “a redo.”

“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.

Schmidt said there are good judges who take time with cases, which is often needed in asylum pleas from immigrants from countries at war or known for persecution of certain groups.

But he also said there were “some not-very-good judges” with high productivity.

Ramping up the production line, Schmidt said, will waste time.

“You will end up with more do-overs. Some people are going to be railroaded out of the country without fairness and due process,” Schmidt said.

. . . .

“It doesn’t make any sense to squeeze them,” said Huyen Pham, a professor at Texas A&M University School of Law in Fort Worth. “When you see a lot more enforcement, it means the immigration court will see a lot more people coming through.”

Lawyers and law school professors say the faster pace of deportation proceedings by the U.S. Immigration and Customs Enforcement spells more trouble ahead. Immigration courts don’t have electronic filing processes for most of the system. Many judges must share the same clerk.

For decades, the nation’s immigration courts have served as a lynchpin in a complex system now under intense scrutiny. Immigration has become a signature issue for the Trump administration.

Five years ago, the backlog was about 344,000 cases — about half today’s amount. It grew, in part, with a rise in Central Americans coming across the border in the past few years. Most were given the opportunity to argue before an immigration judge about why they should stay in the U.S.

This isn’t the first time the judges have faced an administration that wants them to change priorities. President Barack Obama ordered that the cases of Central American unaccompanied children to be moved to the top of docket.

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

The quota edict was followed by a memo to federal prosecutors in the criminal courts with jurisdiction over border areas to issue more misdemeanor charges against immigrants entering the country unlawfully. Sessions’ memo instructs prosecutors “to the extent practicable” to issue the misdemeanor charges for improper entry. On Wednesday, Sessions is scheduled to be in Las Cruces, New Mexico, to speak on immigration enforcement at a border sheriffs’ meeting.

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

Judge Ashley Tabaddor, President of the National Association of Immigration Judges (“NAIJ” — for the record, I’m a retired member of the NAIJ) hits the nail on the head. This is about denying immigrants their statutory and Constitutional rights while the Administration engages in “Aimless Docket Reshuffling” (“ADR”) an egregious political abuse that I have been railing against ever since I retired in 2016.

Judge Tabaddor’s words are worth repeating:

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

In plain terms this is fraud, waste, and abuse that Sessions and the DOJ are attempting to “cover up” by dishonestly attempting to “shift the blame” to immigrants, attorneys, and Immigration Judges who in fact are the victims of Session’s unethical behavior. If judges “pedaling faster” were the solution to the backlog (which it isn’t) that would mean that the current backlog was caused by Immigration Judges not working very hard, combined with attorneys and immigrants manipulating the system. Sessions has made various versions of this totally bogus claim to cover up his own “malicious incompetence.”

Indeed, by stripping Immigration Judges of authority effectively to manage their dockets; encouraging mindless enforcement by DHS; terminating DACA without any real basis; insulting and making life more difficult for attorneys trying to do their jobs of representing respondents; attacking legal assistance programs for unrepresented migrants; opening more “kangaroo courts” in locations where immigrants are abused in detention to get them to abandon their claims for relief; threatening established forms of protection (which in fact could be used to grant more cases at the Asylum Office and by stipulation — a much more sane and legal way of reducing dockets); canceling “ready to hear” cases that then are then “orbited” to the end of the docket to send Immigration Judges to detention courts where the judges sometimes did not have enough to do and the cases often weren’t ready for fair hearings; denying Immigration Judges the out of court time necessary to properly prepare cases and write decisions; and failing to emphasize the importance of quality and due process in appellate decision-making at the BIA, Sessions is contributing to and accelerating the breakdown of justice and due process in the U.S. Immigration Courts.

PWS

04-11-18

JULIE HIRSHFIELD DAVIS IN THE NYT: TRUMP’S BOGUS ORDER ON SO-CALLED “CATCH & RELEASE” DOESN’T ACTUALLY DO MUCH BUT COULD BE PRELUDE TO ALL OUT ASSAULT BY OUR ROGUE, SCOFFLAW ADMINISTRATION ON CONSTITUTION AND LAWS LIMITING CIVIL DETENTION & GRANTING A FAIR RIGHT TO APPLY FOR ASYLUM!

https://www.nytimes.com/2018/04/06/us/politics/trump-immigration-policy.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Julie Hirshfield Davis reports for the NY Times:

President Trump issued a memorandum on Friday directing his administration to move quickly to bring an end to “catch and release,” the practice by which immigrants presenting themselves at the border without authorization are released from detention while waiting for their cases to be processed.

The directive does not, on its own, toughen immigration policy or take concrete steps to do so; it merely directs officials to report to the president about steps they are taking to “expeditiously end ‘catch and release’ practices.” But it is a symbolic move by Mr. Trump to use his executive action to solve a problem that he has bitterly complained Congress will not.

It also caps a week that began with the president offering tough talk on immigration and ended with his ordering the National Guard to patrol the southwestern border, a move formalized on Friday night when Defense Secretary Jim Mattis signed orders to deploy up to 4,000 troops.

“The safety and security of the American people is the president’s highest priority, and he will keep his promise to protect our country and to ensure that our laws are respected,” Sarah Huckabee Sanders, the White House press secretary, said in a statement announcing the memorandum.

“At the same time, the president continues to call on congressional Democrats to cease their staunch opposition to border security and to stop blocking measures that are vital to the safety and security of the United States,” she added.

The memo appears intended to prod the administration to move more rapidly in cracking down on unauthorized immigrants at the border, a goal laid out in an executive order Mr. Trump issued last year during his first week in office.

The latest directive instructs the Departments of Homeland Security, Defense, Justice and Health and Human Services to report to the president within 45 days on their efforts to ensure that those immigrants are detained, including steps taken to allocate money to build detention facilities near the borders. The agencies must also detail efforts to ensure unauthorized entrants do not “exploit” parole and asylum laws to stay in the United States, including evaluating how they determine whether migrants have “credible fear” of returning to their country of origin — the legal bar that people claiming asylum must meet to avoid prompt removal.

The memo also orders a list of existing facilities, including military sites, that could be used to detain those violating immigration law, and detailed statistics on credible claims of fear and how they have been processed since 2009.

The directive gives officials 75 days to report to Mr. Trump on additional resources or authorities they need to end catch-and-release practices. And within 60 days, it asks the secretaries of state and homeland security to submit a report on actions they are taking against countries that “refuse to expeditiously accept the repatriation of their nationals,” including whether the United States has punished them by refusing to grant visas to their citizens — and if not, why not.

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

The Trump Administration already stands credibly accused in at least one pending court case of violating its legal duty to consider asylum claims by individuals who apply at ports of entry on the Southern Border. Obviously, such legal violations by our Government promote illegal entry as the only way to vindicate statutory rights. Trump’s outrageous creation of a “false crisis” at the Southern Border should prompt the Article III Federal Courts to enjoin the Administration to comply with the asylum law.

Moreover, further attempts to manipulate the “credible fear” criteria against asylum seekers should also lead to Federal Court review and action against the Administration if, as appears likely, it uses biased criteria to deny the legal right of individuals in the U.S. or at the border to apply for asylum.

Moreover, asylum applicants who are “in the United States” whether legally or illegally and are in Removal Proceedings are entitled to an individualized bond consideration (unless they are serious criminals or security risks — the overwhelming number of asylum applicants are neither). Attempts to manipulate bond criteria (which have been undertaken to some extent by the last three Administrations) have almost uniformly been rejected by the Article III Federal Courts.

Therefore, the Administration’s legal options might be limited. However, the Administration arguably might have authority under current law to detain asylum applicants who arrive at ports of entry without providing any rational reasons for doing so. That’s likely to be a hotly contested issue in litigation.

Meanwhile, it’s critically important for those of us who support American values and see through the charade being put on by the Trump Administration to elect only U.S. Senators and Representatives who will “Just Say No” to the Administration’s bogus requests for: 1) more unneeded DHS enforcement personnel; and 2) more unneeded detention space in the “New American Gulag” being created by Trump and his White Nationalist reactionaries.

Harm to the most vulnerable is harm to all of us! Join the New Due Process Army and resist the Trump Administration’s contrived assault on America! Due Process Forever! Trump & Sessions Never!

PWS

04-07-18

JOSEPH TANFANI @ LA TIMES: More Critical Reaction To Sessions’s Immigration Court Quotas — “If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars.” (PWS)

http://www.latimes.com/politics/la-na-pol-immigration-courts-20180406-story.html

Joseph Tanfani reports for the LA TIMES:

The nation’s 58 immigration courts long have been the ragged stepchild of the judicial system – understaffed, technologically backward and clogged with an ever-growing backlog of cases, more than 680,000 at last count.

But a plan by Atty. Gen. Jeff Sessions, a longtime immigration hawk, aimed at breaking the logjam and increasing deportations of immigrants in the country illegally has drawn surprising resistance from immigration judges across the country.

Many say Sessions’ attempts to limit the discretion of the nation’s 334 immigration judges, and set annual case quotas to speed up their rulings, will backfire and made delays even worse — as happened when previous administrations tried to reform the system.

“It’s going to be a disaster and it’s going to slow down the adjudications,” warned Lawrence O. Burman, secretary of the National Assn. of Immigration Judges, a voluntary group that represents judges in collective bargaining.

Cases already move at a glacial pace. Nationwide, the average wait for a hearing date in immigration court is about two years, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization at Syracuse University.

But some jurisdictions are much slower. The immigration court in Arlington, Va., where Burman is a judge, has a four-year backlog, meaning hearings for new cases are being scheduled in 2022. Burman says the reality is far worse — the docket says he has 1,000 cases scheduled to begin on the same day in 2020.

. . . .

Another problem: Poorly funded immigration courts still use paper files, slowing access to information, while other federal courts use digital filing systems.

The Executive Office of Immigration Review, the Justice Department office that oversees the courts, started studying the problem in 2001. It has issued numerous reports and studies over the last 17 years, but accomplished little in the way of computerized record keeping.

. . . .

The judges don’t see it that way. Burman and other leaders of the immigration judges’ association, in an unusual public protest, say Sessions’ plan will force judges to rush cases and further compromise the courts’ already battered reputation for fairness.

“Clearly this is not justice,” said the association president, Judge A. Ashley Tabaddor, who sits in Los Angeles, the nation’s busiest immigration court. The plan will “undermine the very integrity of the court.”

Sessions is not the first U.S. attorney general to try to push deportation cases through the system faster.

John Ashcroft, who served under President George W. Bush, unveiled a streamlined approach in 2002, firing what he called softhearted judges from the 21-member Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws.

The result was an increase of cases sent back by federal courts, which reviewed the decisions – and more delays.

Under the Obama administration, immigration judges were ordered to prioritize old cases to try to clear the backlog. But after thousands of unaccompanied minors from Central America surged to the southwest border in 2014, they were told to focus on those cases instead. As the dockets were reshuffled, the backlog kept growing.

Last fall, Sessions ordered 100 immigration judges from around the country to travel to courts on the border to move cases quickly. The Justice Department pronounced it a success, saying they finished 2,700 cases.

Some of the judges were less enthusiastic.

“We had nothing to do half the time,” said Burman, who spent eight weeks in border courts. “I’m not saying it’s a bad idea, but they sent more people than they needed to” while his caseload in Virginia languished for those two months.

Immigration advocates say the answer is more resources: more judges, more clerks, and legal representation for immigrants. They also say the courts should be independent, not under the Justice Department.

“Everybody wants to hear there’s some magical solution to make all this fine. It’s not going to happen,” said Paul Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals.

“If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars,’ he said.

Staff writer Brian Bennett contributed to this report.

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

Go on over to the LA Times at the above link for Joseph’s complete article.

Those of us in the Immigration Courts at the time of the “Ashcroft debacle” know what a complete disaster it was from a due process, fairness, and efficiency standpoint. Far too many of the cases were returned by the Article III Courts for “redos” because Immigration Judges and BIA Members were encouraged to “cut corners” as long as the result was an order of removal.

Some judges resisted, but many “went along to get along.” Some of the botched cases probably still are pending. Worse, some of the botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases up to the Courts of Appeals. And, the Courts of Appeals by no means caught all of the many mistakes that were made during that period. Haste makes waste. I analogized it to being an actor in a repertory theater company playing the “Theater of the Absurd.” Now, Sessions is promoting a rerun of another variation on that failed theme.

Somebody needs to fix this incredibly dysfunctional system before shifting it into “high gear.” And, it clearly won’t be Jeff Sessions.

PWS

04-07-18

HON. BRUCE J. EINHORN IN WASHPOST: SESSIONS’S BLATANT ATTEMPT TO INTIMIDATE U.S. IMMIGRATION JUDGES TO DEPORT INDIVIDUALS IN VIOLATION OF DUE PROCESS SHOWS A SYSTEM THAT HAS HIT ROCK BOTTOM! — Are There Any “Adults” Out There In Congress Or The Article III Courts With The Guts To Stand Up & Put An End To This Perversion Of American Justice? — “Due process requires judges free of political influence. Assembly-line justice is no justice at all.”

https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.770822e8f813

My former colleague Judge Bruce J. Einhorn writes in the Washington Post:

Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.

It’s a principle that has been a hallmark of our legal culture: The president shouldn’t be able to tell judges what to do.

No longer. The Trump administration is intent on imposing a quota system on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.

I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICE’s claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.

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As a judge, I swore to follow the Fifth Amendment of the U.S. Constitution, which guarantees that “no person” (not “no citizen”) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.

My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.

Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a “satisfactory” performance rating. It follows that only judges who complete more, perhaps many more, than 700 cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.

Essentially, the administration’s plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.

This is a genuine threat to the independence of the immigration bench. While Article III of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under the U.S. Administrative Procedure Actor any regulations.

Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it, and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.

Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.

The Trump administration’s intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness — as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.

In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.

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

Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!

Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!

Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now! The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!

PWS

04-05-18

HEIDI BOAS @ WILKES LEGAL: Following A Colossal 14-Year Battle, The U.S. Asylum System Saved Rodi Alvarado’s Life – Can Jeff Sessions Undo This Critically Needed, Life-Saving Protection For Thousands Of Women & Children Like Rodi With A Single Stroke Of His Pen?

Issue Spotlight:

Will America Shut Its Doors to Immigrant Survivors of Domestic Violence?

by Heidi Boas, Immigration Attorney

Wilkes Legal, LLC

April 5, 2018

Will the U.S. continue to offer asylum to

immigrant survivors of domestic violence

like Rodi Alvarado Peña?

In January 2018, Wilkes Legal won asylum for an immigrant mother and her children who escaped over a decade of extreme physical, psychological, and sexual abuse that sent our client to the hospital and left one of her children with a permanent physical impairment. Because our client’s domestic partner was a high-ranking military officer in their home country, her pleas for help from government authorities fell on deaf ears, causing her to flee the country for her safety. In recent years, the United States has offered asylum protection to domestic violence survivors like this client. A recent move by Attorney General Jeff Sessions, however, could soon limit or end the ability of domestic violence survivors to receive asylum protection in the United States.

Domestic violence has long been a contentious issue in asylum law. More than two decades ago, advocates began a 14-year legal battle to win asylum for Rodi Alvarado Peña, a Guatemalan woman who suffered a decade of brutal violence at the hands of her husband. Even though Ms. Alvarado repeatedly sought help from the Guatemalan police and courts, the Guatemalan authorities refused to intervene and protect her. When Ms. Alvarado tried to escape from her husband, he tracked her down and beat her unconscious. Ms. Alvarado ultimately fled to the United States and became the subject of a controversial, high profile immigration court case, as multiple administrations considered whether to grant asylum to women whose countries fail to protect them from domestic violence. Ms. Alvarado ultimately received asylum in 2009, but her case did not establish legal precedent that could help other asylum-seekers fleeing domestic violence.

In 2014, the Board of Immigration Appeals (BIA) finally issued a precedential decision recognizing domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA granted asylum to a Guatemalan woman whose husband broke her nose, repeatedly raped her, and burned her with paint thinner. The BIA recognized “married women in Guatemala who are unable to leave their relationship” as a group that can qualify for asylum. This landmark case opened the doors to protection for other immigrant survivors of domestic violence whose countries fail to protect them from abuse.

While the United States has made great strides in offering protection to immigrant survivors of domestic violence, Attorney General Jeff Sessions recently took a step that could potentially undo decades of forward progress. As attorney general, Sessions has the authority to refer immigration court cases to himself, overturn decisions of the Board of Immigration Appeals, and set precedent. Last month, Sessions referred an immigration case to himself involving a survivor of domestic violence from El Salvador. If Sessions rules against this woman, he would begin reshaping asylum law for abuse survivors and could potentially shut the doors to countless victims seeking protection in the United States.

In the case under Sessions’ review, a Salvadoran women referred to as A.B. suffered years of domestic violence at the hands of her ex-husband in El Salvador. Even though A.B. separated from her husband and eventually divorced him, her ex-husband returned three years after their separation and raped her. A.B. also testified to receiving threats from her ex-husband’s brother, who is a police officer, and his friend, who told the woman that her ex-husband would kill her and he would help dispose of her body. Although an Immigration Judge denied A.B.’s asylum case, the Board of Immigrant Appeals disagreed with the judge’s ruling and sent the case back to the judge to reconsider his decision. The Immigration Judge again refused to grant asylum to A.B., however, despite the BIA’s precedent decision in Matter of A-R-C-G-, due to other more recent decisions in his jurisdiction.

Now that Sessions has stepped in to review A.B.’s case, he has the authority to determine whether she should be granted asylum. If Sessions denies her asylum case, his decision could have a far-reaching impact, setting precedent that would make it more difficult for other immigrant survivors of domestic violence to qualify for asylum in the future. If Session limits asylum eligibility for these survivors, he will roll back decades of progress in asylum law and close the doors to immigrant victims of abuse who have nowhere else to turn.

Wilkes Legal stands with immigrant survivors of domestic violence and urges Sessions to uphold the BIA’s current precedent, keeping America’s doors open to victims of domestic abuse whose governments fail to protect them.

Visit our website, follow us on Facebook or Twitter, or call our office at (301) 576-0491 to learn more about Wilkes Legal, LLC.

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

From his actions to date, Sessions appears to be up to no good. But, by now the “A-R-C-G-/R-A- principles” are deeply ingrained in U.S. protection law as interpreted by the Article III Federal Courts.

I predict that an attempt by Sessions to undo A-R-C-G- protections will be heavy-handed, blatantly biased, and thinly reasoned as have been all of his transparently biased reversals of established legal positions to date.

It’s therefore likely to suffer a fate of emphatic rejection by the Article IIIs much like what happened when Attorney General Michael Mukasey tried to undo years of established legal precedent about proof of crimes involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), rev’d & remanded, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015).

I’m hardly a “Charter Member of the Mike Mukasey Fan Club.” His poor stewardship over the U.S. Immigration Court system is at least partially responsible for today’s inexcusable mess in our Immigration Courts.

Nevertheless, before becoming Attorney General, Mukasey was a well-respected U.S. District Judge. He’s 10X the lawyer as Sessions! Sessions’s lack of any discernible legal skills, integrity, humanity, and judgement probably bodes well for the “Good Guys” in the long run.

But, that doesn’t mean that there won’t be unnecessary and unconscionable suffering. Sessions is a bully at heart who relies on the fact that the majority of individuals in the U.S. Immigration Court system are unrepresented and therefore unable to defend themselves against his racist/xenophobic policies.

I’m proud to be one of the “Gang of Five” Appellate Immigration Judges (“Board Members” ) who dissented from the BIA’s original outrageously incorrect decision in Matter of R-A-, 22 I&N Dec. 908 (BIA 1999), vacated, Matter of R-A-, 22 I&N Dec. 908 (A.G. 2001) that reversed a clearly correct grant of asylum to Rodi Alvarado. The other dissenters were Judges John Guendelsberger (who wrote the dissent), Lory Diana Rosenberg, Gustavo D. Villageliu, and Anthony C. Moscato.

Not coincidentally, all of us except for Judge Moscato were removed and “exiled” from the BIA during the “Ashcroft Purge of 2003” for the transgression of doing our jobs conscientiously and standing up for a correct interpretation of the asylum law. So much for the “facade of quasi-judicial independence at the BIA.” (Credit to Peter Levinson). And, that’s before the current “descent into the abyss” brought about by Sessions!

We need an independent Article I U.S. Immigration Court now!

PWS

04-05-18

NAIJ PRESIDENT, JUDGE A. ASHLEY TABADDOR RESPONDS TO DOJ’S UNILATERAL ACTION ON PRODUCTION QUOTAS FOR U.S. IMMIGRATION JUDGES — DOJ Spokesperson Bald-Faced Lied To Media! — Quota Memo Is An Attack On Quality Of Judicial Decisions & Due Process – What Other Court In America Imposes Artificial Limits On Its Judges’ Ability To Perform Scholarship & Write Fair, Cogent Decisions? Get My “Inside Look” At The Appalling Dysfunction, Intentionally Inflicted Chaos, & Disregard For Fundamental Fairness Plaguing Our U.S. Immigration Courts In The “Age of Sessions!”

I have permission Judge Tabaddor to release the text of the following e-mail, dated April 2, 2018, that I received from her (solely in her capacity as NAIJ President) because I am a retired member of the NAIJ:

Dear NAIJ Members,

Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.

I also would like to reiterate that NAIJ is pursuing all available means to ensure that these measures are fairly implemented. We have been engaged with EOIR for the past six months on these very issues and continue to stand in full support of our judges and the integrity of the Court. Prior to the email, NAIJ was pursuing the terms of an MOU with EOIR in an effort to reach a mutually agreeable solution in an informal and more cooperative fashion. However, with the Director’s announcement, NAIJ is now exercising formal bargaining rights.

We invite you to reach out to myself or any of our officers and representatives with any questions, concerns, or suggestions. We will keep you apprised of the ongoing negotiations and developments on this issue.

Thank you
Ashley Tabaddor

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

As I had suggested earlier, the claim that the NAIJ had “agreed” to the production quotas was simply another lie by the Sessions DOJ. Lies, mis-representations, distortions, bogus statistics — why is this Dude our Attorney General given his proven record of disdain for truth, our law, our Constitution, and human decency as well as his total lack of any judicial qualifications to be administering perhaps the largest Federal Court system?

Another “under the radar” aspect of this toxic attempt to compromise due process in the Immigration Court system was pointed out to me by my good friend and colleague retired U.S. immigration Judge Carol King of San Francisco. As Judge King points out, by requiring U.S. Immigration Judges to render almost all final decisions at the hearing or within a few days of the hearing, the Attorney General is basically forcing them to use the widely discredited “contemporaneous oral decision” format rather than the preferred “full written decision” format.

Having reviewed thousands of Immigration Judge decisions during my career as an Appellate Immigration Judge on the BIA, and rendered thousands more during my time as a U.S. Immigration Judge in Arlington, I can say that with few exceptions, the “oral decision format” is grossly inadequate to meet the needs of today’s complex asylum litigation, particularly for cases to go to the Courts of Appeals. Oral decisions commonly have factual and citation errors as well as grammatical, spelling, and punctuation errors caused by the totally un-judicial format.

Moreover, except in unusual cases, Immigration Judges are not permitted to have a transcript made before rendering a decision! The case is only transcribed by EOIR at the time an appeal to the BIA is actually taken, well after the Immigration Judge has completed his or her decision.

At the beginning of my 45 year legal career, I used “real dictation” in some of my jobs. The basic idea was that the initial draft was a “quick and dirty” that was then reviewed, revised, and corrected numerous times before being issued as a “final.” Indeed, at Jones Day, which had a typing pool back in the 1980s when I was there, I used to leave my dictated drafts when I went home at night for the “overnight typing pool” to have on my desk the next morning. I would never have dreamed of issuing a client letter or brief that hadn’t been reviewed, revised, and retyped (and then probably read by one of my colleagues).

By contrast, a U.S. Immigration Judge must dictate a final oral decision at the conclusion of the hearing, or shortly thereafter, with the parties present (talk about a waste and disrespect for time) and no actual transcriber in the room. If an appeal is taken, the oral decision portion of the digital recording is “separated” and typed in a decision format. While the Immigration Judge does receive an electronic copy of the decision at the time it goes to the Board Panel for adjudication, my experience is that any corrections by the Immigration Judge are seldom in the BIA record file at the time the BIA acts on the case. Moreover, trial judges are specifically limited to making “editorial” changes. Major changes to legal analysis, fact-finding, or even results can’t be made during this review process.

Unlike other Federal and State judges in courts of comparable authority, U.S. Immigration Judges also are forced to work without any individually selected Judicial Law Clerks (“JLCs”). Immigration Judges must share a “pool” of JLCs (occasionally not even in the same court location) selected, assigned, and “supervised” by EOIR Headquarters with minimal, if any, input from the Immigration Judges.

Moreover, the JLCs report to and are “evaluated” by an Assistant Chief Judge who more often than not is in Falls Church, VA, far removed from the actual trial courts! (Immigration Judges are given an option to submit performance comments” to the ACIJ, but never see the final evaluations of the JLCs). Sometimes a JLC may go a year or more without any “in person” interaction with his or her “supervisor.” What other judges, in any system, are forced to work under these types of conditions?

I firmly believe that the clearly inferior work product produced by the “oral decision” format is one of the reasons the U.S. Immigration Judges have an unfortunate “unprofessional” reputation with some of the Courts of Appeals.

Let’s use a “real life” example. My son was a JLC for a U.S. District Court Judge. That Judge actually had sufficient “out of court” time to do some of his own writing. If asked to prepare a draft decision, my son submitted it to his District Judge who carefully reviewed, revised, and commented on the draft. Then my son reworked the decision to his District Judge’s individual specifications and all citations, fact-finding, and other references were carefully checked, as well as spelling, punctuation , style, etc. The end product looked somewhat like a scholarly law review article in judicial decision format. Not surprisingly, that District Judge’s opinions were seldom reversed by the Court of Appeals.

Now imagine a Court of Appeals Judge, just after reading that decision, picks up an immigration file involving a complex life or death asylum case. The decision looks like it was written by a high school student who flunked remedial English. Run on sentences, not many paragraphs, non-standard punctuation, mis-spellings and incomprehensible citations. Moreover, on further examination, the Circuit Court Judge’s personal law clerk has already discovered some glaring factual errors in the Immigration Judge’s “stream of consciousness” recitation of the facts. The BIA “summarily affirmed” the result in a single-Member decision with no reasoning! No wonder the Immigration Courts are often lowly regarded by the reviewing Circuit Courts!

U.S. Immigration Judges are being placed in an impossible position. While Sessions proposes to “grade” them on appellate reversals and remands, he simultaneously will restrict and artificially limit their ability to do research, review actual records and transcripts, and prepare careful, high quality written decisions. Sessions intends to impose new “quotas” without meaningful input from: 1) the ImmigratIon Judges who hear the cases; 2) the Appellate Immigration Judges on the BIA; 3) the parties and attorneys who appear in Immigration Court, or 4) the U.S. Circuit Court Judges who must review the Immigration Court’s work product. What kind of process is that? Why is Sessions being allowed to get away with this? No other court system in America operates in such an intentionally dysfunctional manner.

Instead of working on real reforms that would improve the quality of justice and the ability of already overwhelmed U.S. Immigration Judges to deliver fairness and due process, Jeff Sessions intentionally is further degrading both the Immigration Judges and the process! “Just say no” to the malicious incompetence of Jeff Sessions and his DOJ!

PWS

04-04-18

TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!

How Trump’s policies could worsen the migration issue he says he wants to solve

By Tal Kopan, CNN

President Donald Trump in recent days has decried “weak” US border laws that he says leave the US vulnerable to unfettered immigration — but some of his policies could have the effect of worsening a Central American migrant crisis.

Even as the Department of Homeland Security says the southern border “is more difficult to illegally cross today than ever before,” Trump has stepped up his hardline immigration rhetoric, calling on the US military to guard the US-Mexico border until his long-promised wall is complete. He’s hammered Mexico and other countries for policies that he says are disadvantageous to the US and that send unsavory individuals into the country.

But experts say the President has been pursuing other policies that could substantially harm Central America — and in doing so, he risks creating conditions that generate the exact kind of mass exodus north that he talks about wanting to solve.

Immigration is driven by what are called push and pull factors. The US has been seeking aggressive immigration powers to cut down on what they say are pull factors — the perception that immigrants can live illegally with impunity in the US. But those very policies could affect push factors — the conditions of poverty and violence that drive immigrants elsewhere out of desperation.

“The US sort of talks out of both sides of its mouth,” said Eric Olson, a Latin America expert at the nonpartisan Wilson Center.

“If you’re investing in the region to address the drivers of migration and at the same time pursuing a policy of large-scale deportation, or at least potentially large-scale deportation, and you’re creating more obstacles for people leaving the region for reasons like violence and so on, you’re really creating more instability, not less instability.”

(Much) more: http://www.cnn.com/2018/04/04/politics/trump-migration-central-america/index.html

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

As Tal says, there’s much, much more to her report on the total stupidity and counter-productivity (not to mention inhumanity) of the Trump Administration’s “Gonzo” enforcement policy. Go on over to CNN at the link to get the full picture.

I’ve been saying for some time now that Trump is pursuing facially “hard-line” policies that are proven failures. Indeed, that forced migration from Central America is a phenomenon that spans four decades and six different Administrations with varying degrees of “same old, same old” would suggest to rational leadership that a different approach is required.

Contrary to Trump’s oft-made bogus claim, his is not the first Administration to try a “close the border, detain and deter” policy. Beginning with Reagan, every Administration has tried largely the same thing (although perhaps without some of the inflammatory and outright racist rhetoric favored by the Trumpsters) and all have failed. I know because I’ve been involved in some aspect of trying to implement those failed policies in at least four of those Administrations, two GOP and two Democrat.

That’s why the trend of migration from the Northern Triangle continues and will continue and fester until we get some enlightened leadership that 1) correctly applies our refugee and protection laws in the generous humanitarian spirit they were intended; and 2) recognizes and starts to deal effectively with the “push” issues in the sending countries.

Contrary to the false narrative spread by current Administration, most Central American refugees that I encountered personally during my career would have preferred to remain in their home countries, if political and country conditions had permitted it. Indeed, many were forced by targeted violence to give up promising careers, studies, or businesses to flee for their lives to the U.S. Here, they often had to perform “entry-level” work to support themselves unless and until they achieved some type of legal status (often TPS , asylum, withholding of removal, CAT relief, Special Immigrant Juvenile (“SIJ”) status, or a green card under NACARA).

Of course, many were denied protection despite having very credible, well-documented fears of harm because they didn’t fit the intentionally restrictive asylum criteria engineered by the BIA over several Administrations largely as a result of political pressure on the system to be “unwelcoming” to Central American migrants. Some of those who returned were killed or disappeared; others were tortured or attacked again and forced to flee second or third times, now bearing the scars or injuries to prove their cases — only as “prior deportees” they were no longer eligible for asylum but had to accept withholding of removal or CAT deferral.

Nobody in this Administration, and sadly relatively few in Congress and among the public, are willing to deal honestly with the phenomenon of Central American migration and the “push factors” that will never, ever be controlled by more restrictive laws, more violations of statutory, Constitutional, and international rights, inhumane and life-threatening detention , and racist rhetoric. Nor will it be stopped by any bogus “Wall.”

As I’ve said before, “We can diminish ourselves as a nation, but that won’t stop human migration!” If only someone would listen!

PWS

04-04-18

LORELEI LAIRD @ ABA JOURNAL: Sessions’s Quotas Threaten Due Process & Judicial Independence –“And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.” (PWS)

http://www.abajournal.com/news/article/justice_department_imposes_quotas_on_immigration_judges_provoking_independe

Lorelei Laird reports for the ABA Journal:

. . . .

The news was not welcomed by the National Association of Immigration Judges. Judge A. Ashley Tabaddor, the current president of the union, says the quotas are “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.” A quota system invites the possibility that judges will make decisions out of concern about keeping their jobs, she says, rather than making what they think is the legally correct decision. And even if they don’t, she points out, respondents in immigration court may argue that they do.

“To us, it means you have compromised the integrity of the court,” says Tabaddor, who is a sitting immigration judge in Los Angeles but speaking in her capacity as NAIJ’s president. “You have created a built-in appeal with every case. You are going to now make the backlog even more. You’re going to increase the litigation, and you are introducing an external factor into what is supposed to be a sacred place.”

Retired immigration judge Paul Wickham Schmidt adds that the new metrics are unworkable. Reversal on appeal is influenced by factors beyond the judge’s control, he says, including appeals that DHS attorneys file on behalf of the government and shifting precedents in higher courts.

McHenry’s email said that “using metrics to evaluate performance is neither novel nor unique to EOIR.” Tabaddor disagrees. Federal administrative law court systems may have goals to aspire to, she says, but those judges are, by law, exempt from performance evaluations. Nor have the immigration judges themselves been subject to numeric quotas in the past.

“No other administration before this has ever tried to impose a performance measure that [had] this type of metrics, because they recognized that immediately, you are encroaching on judicial independence,” she says.

Schmidt agrees. “No real judge operates under these kinds of constraints and directives, so it’s totally inappropriate,” says Schmidt, who has also served on the Board of Immigration Appeals. “And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.”

Tabaddor adds that the Justice Department forced the union last year to drop a provision forbidding numbers-based performance evaluations from its contract negotiations. This was not a sign that NAIJ agrees with the quotas, she says, but rather that the union’s hands are tied under laws that apply to federal employees.

The memo continues a trend of Justice Department pressure on immigration judges to resolve cases. Attorney General Jeff Sessions, who has the power to refer immigration law cases to himself, is currently taking comment on whether judges should have the power to end cases without a decision. (The ABA has said they should.)

Last summer, the chief immigration judge discouraged judges from granting postponements. Sessions did the same in a December memo that referenced the backlog as a reason to discourage “unwarranted delays and delayed decision making.”

Sessions has power over the immigration courts because they are a branch of the DOJ, not an independent court system like Article III courts. Independence has long been on the judges’ union’s wish list, and it was one topic when HBO’s Last Week Tonight with John Oliverexplored some problems with immigration courts on Sunday.

As the ABA Journal reported in 2017, the immigration courts have had a backlog of cases for most of the past decade, fueled by more investment in enforcement than in adjudication. Schmidt claims that unrealistic laws and politically motivated meddling in dockets also contribute to the backlog. As of the end of February, 684,583 cases were pending, according to Syracuse University’s Transactional Records Access Clearinghouse, which gets its data from Freedom of Information Act requests.

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

Read Lorelei’s full article at the link.

Clearly:

Today’s Immigration Courts are not “real” courts in the sense that they are neither independent nor capable of truly unbiased decision-making given the clear bias against immigrants of all types expressed by Sessions and other officials of the Trump administration who ultimately control all Immigration Court decisions.
The Immigration Courts have become a mere “facade of Due Process and fairness.” Consequently, Federal Courts should stop giving so-called “Chevron deference” to Immigration Court decisions.
The DOJ falsely claimed that the NAIJ “agreed” to these “performance metrics” (although as noted by Judge Tabaddor, the NAIJ might have lacked a legal basis to oppose them).
The current Immigration Court system is every bit as bad as John Oliver’s TV parody, if not actually worse.
America needs an independent Article I Immigration Court. If Congress will not do its duty to create one, it will be up to the Federal Courts to step in and put an end to this travesty of justice by requiring true Due Process and unbiased decision-making be provided to those whose very lives depend on fairness from the Immigration Courts.

PWS

04-04-18

AS EVIDENCE OF SESSIONS’S BIAS AND INCOMPETENCE TO RUN THE IMMIGRATION COURT SYSTEM MOUNTS, HE “GOES GONZO” ON US IMMIGRATION JUDGES & IMMIGRANTS SEEKING JUSTICE — Dropping All Pretensions That These Are Anything Other Than “Kangaroo Courts,” Gonzo Imposes Assembly Line Quotas That Are Unconstitutional On Their Face!

HERE ARE THE EOIR (SESSIONS) MEMOS:

from Asso Press – 03-30-2018 McHenry – IJ Performance Metrics

03-30-2018 EOIR – PWP Element 3 new

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

Both the BIA and the Federal Courts have found that “case completion goals” can’t be used as the sole basis for denying a continuance. , 531 F.3d 256 (3d Cir. 2008); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Rather, continuance decisions must be made case-by-case on the basis of a careful consideration and weighing of all relevant factors. By purporting to make the mathematical formulas mandatory rather than goals, the Attorney General only compounds the problem.
- Here are copies of the Hashmi cases:
- 3rd on case completion 063934p
- 3640–Hashmi
Neither Sessions nor Director McHenry has ever served as a U.S. Immigration Judge. They both are totally unqualified to determine “performance criteria” for judges supposedly exercising “independent judgment and discretion.” Indeed, Sessions was once nominated for a Federal District Judgeship but was found unqualified because of his record of racially tinged bias. He has no business being in change of any judiciary.
Numerical quotas simply have no place in a fair judicial system. Having worked with judges in both a supervisory and a collegial capacity for over two decades, my observation is that all good judges do not work at the same pace. Some simply take more time than others to reach a fair result. That doesn’t mean that they are less qualified, less hard-working, or less fair. Indeed in some cases those who take longer to reach a decision are better and more careful judges than those who are more “productive.”
The use of appeal statistics is particularly bogus. I had some cases where I was reversed by the BIA only to be vindicated by the Court of Appeals. In other cases, I was reversed by the Court of Appeals for faithfully applying a BIA precedent that was found to be erroneous. I also had cases while I was an appellate judge on the BIA where my dissenting view was ultimately found by the Court of Appeals be correct and the majority’s view erroneous .
Justice is not a “widget” that can be subjected to “performance standards” by politicos who are not judges. This is all a “smokescreen.” The real problem plaguing the Immigration Court system starts with unqualified politicos interfering in proper docket management and decision-making by judges. Jeff Sessions is a prime example of all that is wrong with the current Immigration Court system.
Contrary to the DOJ’s claim, the National Association of Immigration Judges (“NAIJ”) never agreed to these so-called “performance metrics.” I was actually part of the NAIJ team that negotiated the existing performance evaluation system. We were assured by management at that time that while non-binding “goals and timetables” might be developed by the agency as informal guidance, they were not “numerical quotas” and would not be used in determining individual performance.

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

Here’s an article by Tal Kopan @ CNN on the latest memos:

Justice Department rolls out case quotas for immigration judges

By: Tal Kopan, CNN

The Department of Justice has announced it will evaluate immigration judges on how many cases they close and how fast they hear cases, a move that judges and advocates criticize as potentially jeopardizing the courts’ fairness and perhaps leading to far more deportations.

The policy has been in the works for months, as Attorney General Jeff Sessions and the Trump administration have been working to assert more influence over the immigration courts, or the separate court system built just for hearing cases about whether noncitizens have a claim to stay in the US.

US law gives the attorney general broad and substantial power to oversee and overrule these courts, as opposed to the civil and criminal US justice system, which is an independent branch of government. In the immigration courts, judges are employees of the Department of Justice.

Sessions has been testing the limits of that authority in multiple ways, and in a memo Friday, the director of the immigration courts informed judges they would now be evaluated on a set of metrics including the speed and volume of cases heard.

The Justice Department says the move is designed to make the system more efficient. The immigration courts have a backlog of hundreds of thousands of cases, and it can take years for an immigrant’s case to work its way to completion. In that time, the individuals build lives in the US, and critics point to the immigration courts’ backlog as a major factor in the number of undocumented immigrants living in the US.

“These performance metrics, which were agreed to by the immigration judge union that is now condemning them, are designed to increase productivity and efficiency in the system without compromising due process,” a Justice Department official said of the memo. The official added that any judges who fail to meet performance goals would be able to present extenuating circumstances to the Justice Department.

More: http://www.cnn.com/2018/04/02/politics/immigration-judges-quota/index.html

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

There are an estimated eleven million undocumented individuals living in the United States. That population has grown up over decades primarily as the result of poorly designed and unrealistically restrictive laws that failed to recognize the need of U.S. employers for immigrant labor and further threw up artificial roadblocks to individuals already in the U.S. obtaining legal status. To claim that the Immigration Courts are a “major cause” of this accumulated undocumented population is simply preposterous.

PWS

04-03-18

ELIZABETH J. (“BETTY”) STEVENS IN “THE FEDERAL LAWYER” (FBA) – Why We Need An Article I Immigration Court Now! — “A close read of the GAO’s report provides a chilling window into a system in chaos.”

http://www.fedbar.org/Publications/The-Federal-Lawyer/Columns/Immigration-Law-Update.aspx?FT=.pdf

Recently, the White House announced that it sought to reduce the current immigration court backlog by requesting appropriations for additional immigration judges and instituting performance metrics for all immigration judges.1 Sen. Claire McCaskill and Reps. Jim Sensenbrenner, Zoe Lofgren, and Trey Gowdy asked the General Accountability Office (GAO) the following questions: 1. What do Executive Office for Immigration Review (EOIR) data indicate about its caseload, including the backlog of cases, and potential contributing factors and effects of the backlog according to stakeholders? 2. How does EOIR manage and oversee immigration court operations, including workforce planning, hiring, and technology utilization? 3. To what extent has EOIR assessed immigration court performance, including analyzing relevant information, such as data on case continuances? 4. What scenarios have been proposed for restructuring EOIR’s immigration court system and what reasons have been offered for or against these proposals?2

A close read of the GAO’s report provides a chilling window into a system in chaos.

. . . .

Moving the immigration courts out of the executive branch
would help alleviate the perception that they are not independent tribunals with DHS and the respondents as equal participants. This would also cure the perception that the immigration courts have become so politicized that decisions change not with the law but with the politics of the current administration. Moreover, due to
the number of immigration judges who are former DHS attorneys and the co-location of some immigration courts with Immigration and Customs Enforcement offices, a broad perception exists that immigration judges and DHS attorneys are working together. This perception leads to significant lapses in perceived due process; for example, individuals don’t appear because they think the system is rigged, don’t appeal a bad decision because they lack resources after the long wait for a merits hearing, or don’t pursue potential relief for which they might be eligible. Plus, such a move would allow DHS the opportunity to appeal the Article I appellate division’s decisions to the circuit courts of appeals—providing those courts with a broader, more balanced view of issues and decisions of the trial-level immigration court.21 EOIR’s FY 2016 Statistics Yearbook indicates that one quarter of the initial cases decided were grants—none of which were ever reviewed by the courts of appeals.22

With a move to an Article I court, both trial level and appellate di- vision judges would have fixed terms of office and tenure protections that would facilitate judicial decisions without fear or favor. (If one believes that current members of the Board of Immigration Appeals are truly independent, one should research the “streamlining” of
the board down to just 11 members.23) Current board members and immigration judges are arguably government attorneys with the same client as DHS attorneys.24 They are subject to case completion goals—with or without express reliance on numerical goals—and may be subject to discipline by the attorney general.25 The currently proposed performance metrics are not new—most have been in place in one form or another since 2002.26

Last but not least, removing the immigration courts from the Department of Justice should speed the courts’ ability to regulate itself. First and foremost, the individual immigration judges would have control over their dockets and not be subject to decisions by headquarters to prioritize case A over case B (and then back again)—or send trial judges off to border courts to handle a few cases when their backlogged dockets have to be re-scheduled.27 The Article I court as a whole would be able to issue rules and regulations without the current byzantine requirements for consultation with a number of different offices and agencies. And, finally, hiring an immigration trial judge would not take two years.28

Other options exist; all have flaws. None of the options will single-handedly fix the backlog. We all have strong opinions about whether our nation’s immigration laws need a complete overhaul or a quick x—and how to go about either or both—but as we look to implement changes in our current immigration system, we must also aspire to lift the immigration courts from “halfway there” not-quite- courts to true Article I courts. 

[Text of Footnotes Omitted]

Elizabeth J. Stevens is
the chair of the Federal
Bar Association’s Immi-
gration Law Section.

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

Read Betty’s highly cogent and incisive full article in The Federal Lawyer at the link! You’ll also be able to get all of Betty’s terrifically informative footnotes.

Betty is not just “any” lawyer. In addition to being the head of the FBA’s highly regarded and very active Immigration Law Section, Betty’s distinguished career in the Department of Justice has touched on all aspects of the Immigration Court practice.

While in law school at George Mason, Betty interned at the Board of Immigration Appeals during my tenure there. When I arrived at the Arlington Immigration Court, Betty was serving as the sole Judicial Law Clerk for all six Immigration Judges.

Betty then began a distinguished career at the Office of Immigration Litigation (“OIL”) where her primary job was to defend the orders of the Board of Immigration Appeals. She had a meteoric rise through the ranks of OIL, culminating in position as a Senior Supervisor and a trainer of newer OIL attorneys.

I well remember Betty shepherding numberous groups from OIL over to the Arlington Court to introduce them to immigration litigation at the “retail level of our justice system.” Since her retirement from Federal Service, Betty has been an energetic, well-informed, and steadfast voice for better legal education of attorneys on both sides practicing immigration law and for Immigration Court and BIA reform.

“Chilling” is exactly the right word to describe the utter chaos in our U.S. Immigration Courts today, as the backlog approaches 700,000 cases with no end in sight. It’s “chilling” to the individual Constitutional rights of all Americans, as well as “chilling” as to the fantastic degree of “malicious incompetence” of the DOJ’s pathetic attempt to administer the Immigration Courts under Jeff Sessions.

Betty is someone who has “looked at life from both sides now!” When Betty Stevens says the system is broken and “in chaos,” you’d better believe it’s true! Thanks again Betty for all you do! It’s an honor and a privilege to work with you on the “Due Process Team.”

PWS

04-01-18

FEDERAL COURTS DELIVER ANOTHER BIG HIT TO ADMINISTRATION SCOFFLAWS ON IMMIGRATION: Attempt To Violate Detainee’s Constitutional Right To Abortion Thwarted!

https://www.washingtonpost.com/local/public-safety/us-judge-orders-government-to-allow-abortion-access-to-detained-immigrant-teens/2018/03/30/19e9fcf8-3128-11e8-94fa-32d48460b955_story.html

Ann E. Marimow, Spencer S. Hsu and Maria Sacchetti report for the Washington Post:

A federal judge issued a nationwide order temporarily preventing the government from blocking access to abortion services and counseling for teens detained in immigration custody, saying current administration policy and practices probably are unconstitutional.

The order came in a case brought last fall on behalf of a Central American girl in a government-funded shelter that set off a national debate over the constitutional rights of such undocumented teens to terminate their pregnancies.

The late Friday ruling, by U.S. District Judge Tanya S. Chutkan of Washington, allowed the case to proceed as a class action on behalf of any other teens who have crossed the border illegally and while in federal custody may want to seek abortion services. In filings, the U.S. government acknowledged there were at least 420 pregnant unaccompanied minors in custody in 2017, including 18 who requested abortions.

The Trump administration has refused to “facilitate” such procedures for pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.

The policy position marked a departure from that of the Obama administration, whose Office of Refugee Resettlement did not block immigrants in U.S. custody from having abortions at their own expense, and paid for services for teens in cases of rape, incest or a threat to the woman’s life.

In her 28-page opinion, Chutkan, a 2014 Obama appointee, said the change in policy posed irreparable harm to pregnant teens, writing that “ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices,” referring to unaccompanied children.

“The court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden,” the judge wrote.

A Justice Department spokesman did not immediately comment on the ruling.

The American Civil Liberties Union, representing the teens, expressed relief at the court action.

“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “With today’s rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women.”

[Trump official blocked a teen’s abortion, calling it ‘violence against an innocent life’]

In all, four pregnant teens in custody have asked Chutkan to force the administration to stop blocking access to abortion services. The initial case involving the teen in Texas is still pending in the Supreme Court after the Justice Department took the unusual step of asking the justices to consider disciplining the teen’s lawyers.

[Trump administration suggests possibility of disciplinary action against ACLU lawyers in abortion case]

Abortion rights advocates and some Democrats in Congress have called for the firing of E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services. Court records show that Lloyd has personally intervened to try to block abortion services.

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

Read the full article at the above link.

Hard to figure out why guys like E. Scott Lloyd and Jeff Sessions shouldn’t be both 1) fired, and 2) held personally liable under Bivens for knowing and intentional violations of constitutional rights.

PWS

03-31-18

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