Judicial Review – Page 99 – immigrationcourtside.com

NAIJ PRESIDENT JUDGE DANA LEIGH MARKS DETAILS MELTDOWN IN U.S. IMMIGRATION COURTS — CALLS ON CONGRESS FOR URGENT ACTION ON ARTICLE I IMMIGRATION COURT!

https://www.naij-usa.org/images/uploads/publications/NAIJ_-_Snapshot_CRISIS_FACING_OUR_IMMIGRATIONJune_2017.pdf

Judge Marks writes:

“SNAPSHOT OF THE CRISIS FACING OUR IMMIGRATION COURTS TODAY SALIENT FACTS AND URGENT NEEDS

June 2017

As America wrestles with unprecedented challenges to our immigration system, we are once again at a delicate juncture where we must avoid repeating the mistakes of our past. The most overlooked and often forgotten piece of the complicated immigration puzzle facing the nation is our immigration court system. Action is needed NOW to protect these unique courts from politicization and dysfunction. They are often the only face of American justice that non-citizens experience, and our values must be embodied by them. What is needed is an efficient, fair system that assures independent and timely decisions which protect the public from those who may be dangerous to our communities, and allows noncitizens who qualify (because of close family connections, employment here, or persecution in their home country) to stay here.

RECALCITRANT CASE BACKLOGS

As of the end of April, 2017, the Immigration Court backlog stood at 585,930.i The caseload of the Immigration Court has more than doubled since 2010. ii

LENGTHY DELAYS

The average number of days a case was pending on the Immigration Court docket until decision was 670 days as of April 30, 2017, although 9 states (in order of descending magnitude: Colorado, Illinois, Ohio, New Jersey, Texas, Michigan, Nebraska, Arizona and California) exceeded that average.iii The longest wait time is in Colorado, which is 1,002 days.iv

SURGING CASELOAD ON THE HORIZON

In 2014, an unprecedented influx of unaccompanied minors at our nation’s southwest border was labeled a humanitarian crisis, prompting the Senate to nearly double the available funding for care and resettlement of child migrants.v Those cases remain on our dockets and are not easily resolved: of the 229,357 pending juvenile cases as of April 30, 2017, 42% had no legal representation.vi It is inevitable that this influx caused dramatic increases in our dockets and will impact our system for years to come.vii Since January of 2017, our courts have been experiencing another significant increase in new cases resulting from the initiatives announced by President Trump and DHS.viii Many observers agree this is overwhelming an already strained system.ix During the first three months following these announcements, immigration arrests increased 38% over the same period one year earlier.x

FAILURE TO MEET PREDICTABLE STAFFING NEEDS IN A TIMELY FASHION

The inability of the Immigration Courts to meet these surges in caseload is due, in large part, to the chronic lack of sufficient court staff. As long ago as 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270.xi Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015.xii To make matters much worse, 39% of all Immigration Judges are currently eligible to retire.xiii Even with a recent renewed emphasis on hiring, the current number of Immigration Judges nationwide stands at approximately 318 today (298 who are actually in field courts), well below authorized hiring levels of 384.xiv One expert observer recommends adding at least 150 immigration judges to the corps based on its meticulous analysis of past caseload needs.xv The American Bar Association, Administrative Conference of the United States and two expert roundtables convened by Georgetown University’s Institute for the Study of International Migration have all called for dramatically increased resources to staff up our courts.xvi

INADEQUATE SPACE, FACILITIES AND EQUIPMENT

As caseloads explode, the Immigration Courts find themselves in desperate need of additional physical space and facilities to conduct hearings, to accommodate both staff and the voluminous legal filings. Modernized equipment and electronic filing initiatives are needed immediately in order to respond.xvii The current courtrooms are too small to accommodate the large numbers of families now appearing before our courts, raising serious concerns regarding public safety and security. In addition, we don’t have enough courtrooms or courtrooms in the appropriate places to address the caseload.

FAILURE TO PROVIDE ESSENTIAL TOOLS FOR ADJUDICATIONS

Despite express congressional authorization of contempt power for Immigration Judges in 1996, the Department of Justice still has not promulgated implementing regulations. Without authority to impose civil monetary sanctions for attorney misconduct, Immigration Judges lack an important tool in controlling court proceedings over which they preside.

DEEPENING DISCONNECT IN FUNDING BETWEEN DHS AND THE IMMIGRATION COURTS

In the past decade, budgets for components in the Department of Homeland Security (Customs and Border Patrol and Immigration and Customs Enforcement) rose approximately 300% compared to 70% for the Executive Office of Immigration Review.xviii In the meantime, while grappling with this meteoric rise in our dockets, budget bills fail to “right-size” this funding ratio and properly provide for the predictable needs of our courts. xix

CHRONIC SCARCITY OF RESOURCES CRIPPLES DAILY OPERATIONS OF THE COURT

A catastrophic hardware failure on April 12, 2014 took the docketing system off-line for five weeks, impacting the public hotline, digital audio recording and access to the electronic docketing database.xx We fear occurrences like this are just the tip of the iceberg as our chronically resource-starved system continues to face the unprecedented challenges of aging technology, surging caseloads and potential retirements.xxi We remain behind the curve, lacking state-of-the art-technology, e-filing and a reliable corps of skilled interpreters. Cases are cancelled on a regular basis because of the language services contractor’s inability to provide interpreters and serious due process concerns are implicated as the quality of interpreters which are provided has diminished.

JUDGES PUSHED TO THE BRINK

More than five years ago, Immigration Judges reported stress and burnout at higher levels than prison wardens or doctors at busy hospitals.xxii After continuing to struggle in an environment of decreased resources and skyrocketing caseloads for so long, morale is at an all-time low and stress at an all-time high. An unprecedented number of retirements is looming.

SOLUTION

While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xxiii In the intervening years, a strong consensus has formed supporting this structural change. xxiv For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court system….” xxv

The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of American justice these individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for immigration enforcement and due process.

For additional information, visit our website at www.naij-usa-org or contact:

Dana Leigh Marks, President
National Association of Immigration Judges
100 Montgomery Street, Suite 800
San Francisco, CA 94104
415-705-0140
Dana.Marks@usdoj.gov and danamarks@pobox.com

i Transactional Records Access Clearinghouse (TRAC), Syracuse University, Backlog of Pending Cases in Immigration Courts as ofDecember2016,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php; TRAC,SyracuseUniversity, Average Time Pending Cases Have Been Waiting in Immigration Courts as of April 2017, http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php/.

ii Id. and Human Rights First, Reducing the Immigration Court Backlog and Delays, http://www.humanrightsfirst.org/sites/default/files/HRF-Backgrounder-Immigration-Courts.pdf

iii

Supra note i.

Supra note i.
See Presidential Memorandum For the Heads of Executive Departments and Agencies, June 2, 2014,

http://www.whitehouse.gov/the-press-office/2014/06/02/presidential-memorandum-response-influx-unaccompanied-alien-

children-acr and David Rogers, Senate Democrats Double Funding for Child Migrants, POLITICO, June 10, 2014,http://www.politico.com/story/2014/06/child-migrants-immigration-senate-democrats-107665.html

vi TRAC, http://trac.syr.edu/phptools/immigration/juvenile/

vii PBS News Hour, Last year’s child migrant crisis is this year’s immigration court backlog, http://www.pbs.org/newshour/wp-content/uploads/2015/06/Last-years-child-migrant-crisis-is-this-years-immigration-court- backlog.mp3, June 18, 2015

viii Increase in US Immigration Enforcement Likely to Mean Jump in Deportations, VOA, February 3, 2017, https://www.voanews.come/a/increased-us-immigration-enforcement-to-mean-jump-in-deportations/3705604.html

ix Priscilla Alvarez, Trump’s Immigration Crackdown Is Overwhelming a Strained System, THE ATLANTIC, April 21, 2017, https://www.theatlantic.com/politics/archive/2014/04/trump-immigration-court-ice/523557

x Caitlin Dickerson, Immigration Arrests Rise Sharply as a Trump Mandate is Carried Out, THE NEW YORK TIMES, May 17, 2017, https://www.nytimes.com/2017/05/17/us/immigration-enforcement-ice-arrests.html?_r=0

xi See Press Release, Dep’t of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9, 2006), available at http://www.justice.gov/opa/pr/2006/August/06_ag_520.html , and TRAC, Improving the Immigration Courts: Efforts to Hire More Judges Fall Short, http://trac.syr.edu/immigration/reports/189/ .

xii Approximately 20 Immigration Judges are now serving in exclusively or primarily managerial positions with little or no pending caseload. See EOIR Immigration Court Listings, http://www.justice.gov/eoir/sibpages/ICadr.htm. Moreover, it is extremely difficult to precisely calculate the number of IJs at any given point due to the rapid rate of retirements. See Homeland Security Newswire, U.S. Govt. the Largest Employer of Undocumented Immigrants, May 30, 2014, http:www.homelandsecuritynewswire.com/dr20140530-u-s-govt-the-largest-employer-of-undocumented-immigrants

xiii GAO, Immigration Courts – Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, GAO-17-438 (June, 2017).

xiv Supra note xiv; https://www.justice.gov/eoir/eoir-immigration-court-listing
xv See, supra, Human Rights First, Reducing the Immigration Court Backlog and Delays,

Click to access HRF-Backgrounder-Immigration-Courts.pdf

xvi American Bar Association, Reforming the Immigration Court System (2010), Administrative Conference of the United States (ACUS), “Immigration Removal Adjudication, Committee on Adjudication, Proposed Recommendation,” June 14 – 14, 2012; Georgetown University, Institute for the Study of International Migration, Refugee, Asylum and Other Humanitarian Policies: Challenges for Reform, report on expert’s roundtable held on October 29, 2014, available at https://isim.georgetown.edu/sites/isim/files/files/upload/Asylum%20%26%20Refugee%20Meeting%20Report.pdf

xvii Supra note xiv.
xviii See, Marc R. Rosenblum and Doris Meissner, The Deportation Dilemma, Reconciling Tough and Humane Enforcement,

MIGRATION POLICY INSTITUTE, April, 2014, http://www.migrationpolicy.org/research/deportation-dilemma-reconciling-tough- humane-enforcement

xix Erica Werner, Spending Leaves Out Immigration Courts, ASSOCIATED PRESS, Sept. 18, 2014, http://hosted.ap.org/dynamic/stories/U/US_CONGRESS_IMMIGRATION_OVERLOAD?SITE=AP&SECTION=HOME&TEMPLATE- DEFAULT&CTIME=2014-08-18-16-57-40

xx Elizabeth Summers, Weeks-Long Computer Crash Sends U.S. Immigration Courts Back to Pencils and Paper, PBS NEWSHOUR, May 23, 2014, http://www.pbs.org/newshour/updates/weeks-long-computer-crash-sends-u-s-immigration-courts-back- pencils-paper/.

xxi Laura Wides-Munoz, Nearly Half Of Immigration Judges Eligible For Retirement Next Year, Huffington Post, Dec. 22, 2013, available at http://www.huffingtonpost.com/2013/12/22/immigration- judges_n_4489446.html?utm_hp_ref=fb&src=sp&comm_ref&comm_crv.

xxii Stuart L. Lustig et al., Inside the Judges’ Chambers: Narrative Responses from the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L.J. 57 (2009).

xxiii COMM’N ON IMMIGRATION & REFUGEE POLICY, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST: FINAL REPORT AND RECOMMENDATIONS OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY WITH SUPPLEMENTAL VIEWS BY THE COMMISSIONERS (1981).

xxiv Prestigious legal organizations such as the American Bar Association, Federal Bar Association, and American Judicature Society wholeheartedly endorse this reform. While not as certain as to the exact form of change desired, reorganization has also been endorsed by the American Immigration Lawyers Association, and increased independence by the National Association of Women Judges.

xxv Supra, note ii.”

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PROGRAM NOTE:

I am a retired member of the National Association of Immigration Judges (“NAIJ”).

U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?

https://www.washingtonpost.com/national/migrants-in-surge-fare-worse-in-immigration-court-than-other-groups/2017/07/30/e29eeacc-6e51-11e7-9c15-177740635e83_story.html?utm_term=.5d2ca3c80278

Julia Preston of The Marshall Project reports in the Washington Post:

CHARLOTTE — Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.

From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.

The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Their cases are failing just as President Trump is rapidly expanding deportations.

Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.

Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.

New cohort of fugitives

As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.

The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.

Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.

When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.

In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.

In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.

María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)

‘Don’t stop in Charlotte!’

The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.

María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.

“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”

Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.

A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)

Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.

Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.

For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.

But not in Charlotte. Couch and Judge — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.

Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.

“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”

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Read Julia’s complete article at the link.

According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. . . . . Social group determinations are made on a case-by-case basis.”

Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (family members).

Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.

This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.

The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.

PWS

07-31-17

THE HUMAN COST OF GONZO POLICIES!

https://www.washingtonpost.com/local/trumps-travel-ban-is-leaving-these-orphans-stuck-in-refugee-camps/2017/07/28/58195d24-6d52-11e7-8fb5-d101fa38cebd_story.html?utm_term=.c1979f167906&wpisrc=nl_buzz&wpmm=1

Justin Wm. Moyer reports in the Washington Post:

“The tranquil home of James Isaacs, an Episcopal priest, and wife Maggie Brewinski Isaacs, a pediatrician, sits on a hill above a creek on 5½ wooded acres in suburban Maryland. Inside, an unoccupied bedroom awaits a refugee ready to join the family.

But the 16-year-old girl, blocked by the Trump administration’s travel ban, is stuck in an Ethiopian refugee camp and might never see the room.

“The children ask us when their big sister is going to arrive,” James Isaacs said of his sons, ages 4 and 2, one of whom was adopted from South Africa. “We are left in this time of uncertainty because of the administration and the Supreme Court decision.”

The girl, from the East African nation of Eritrea and identified to The Washington Post only by her initials “M.T.” to protect her privacy, is an “unaccompanied minor refugee” — a young, displaced person without a parent or guardian who is seeking refuge in the United States.

Jimmy Isaacs, 4, left, and his brother, Joseph, 2, play on the bed inside the room that the family prepared to foster an “unaccompanied minor refugee” from Africa. (Salwan Georges/The Washington Post)

A painting is seen inside the room that Irene Stevenson prepared to foster an “unaccompanied minor refugee” from Africa. (Salwan Georges/The Washington Post)

On July 19, the Supreme Court allowed the Trump administration’s travel ban to stand, leaving about 100 unaccompanied minor refugees stranded overseas. The decision comes after months of judicial back-and-forth over the ban, casting doubt on the children’s plans to live in the United States.

“They are youth that are on their own,” said Autumn Orme, a director at Lutheran Social Services of the National Capital Area, which works with unaccompanied minor refugees. “I find it pretty extraordinary that they are managing this all on their own. These are children that don’t have parents to care for them.”

[Supreme Court allows Trump refugee ban but backs broader exemptions for relatives]

The result: M.T., an orphan who fled child labor in Eritrea two years ago and was approved by the State Department to live in the United States, remains in legal limbo.

“Not only is she missing out now, we’re missing out,” Isaacs said.

The Isaacs family is not the only one with an empty bedroom after the ban.”

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Read the rest of the stories at the link.

So what kind of country bars vulnerable kids in need while letting the real threats to our national security — Trump, his family, and his cronies — have free rein at the seat of Government? Trump, his family, and some of his advisers probably wouldn’t be able to pass the type of security screening to which overseas refugees are subjected.

PWS

07-28-17

9th Cir. Remands Reasonable Fear Denial In Reinstatement Case — VALENCIA MARTINEZ V. SESSIONS (Published)

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf

“The government does not offer any argument on the merits of this petition; therefore, it has waived any challenge to the arguments Martinez raised. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an appellee who did not address an argument in the answering brief had waived that issue). On remand, the agency is directed: (1) to give proper consideration to Martinez’s testimony about police corruption and acquiescence in MS-13 violence; (2) to accord proper weight to the Department of State Country Report on El Salvador, and in particular, evidence of corruption and inability or unwillingness to prosecute gang violence; and (3) to apply the correct legal standards to Martinez’s Convention Against Torture claim.”

PANEL: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, District Judge.

OPINION BY: Judge Soto

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Read the full opinion at the link. It’s short. Three things stand out.

First, the Respondent’s credible testimony clearly established a plausible claim for CAT relief. If he gets representation, he will be able to show that the authorities in El Salvador do often cooperate with gangs and that the government is willfully blind to the many instances of torture of citizens by gangs. The Asylum Officer’s incorrect analysis along with that by the Immigration Judge show a fundamental misunderstanding of CAT law and the reasonable fear process. How does an Immigration Court system faced with such glaring problems eliminate training and the guidance provided through the former Benchbook?

Second, the 9th Circuit highlights the Byzantine nature of the regulations in this area. How many unrepresented individuals who been treated in this unfair manner are hustled out of the country because they can’t figure out how to get meaningful review?

Third, this decision shows that there might well be ways to penetrate the general unwillingress of Appellate Courts to review the gross miscarriages of justice and denials of due process going on every day in the expedited removal process which is administered by the DHS and inadequately reviewed by the Immigration Judges. Once they take a look, they will be appalled at what they find!

PWS

07-21-17

COUNTING ON THE FEDERAL COURTS TO SAVE US FROM TRUMP’S EXCESSES? — Not So Fast — Trump Is Rapidly Reshaping Them In His Own Image, And The Results Will Be Felt For Decades After He Leaves Office — “Polemicists In Robes!”

https://www.washingtonpost.com/opinions/the-one-area-where-trump-has-been-wildly-successful/2017/07/19/56c5c7ee-6be7-11e7-b9e2-2056e768a7e5_story.html?utm_term=.cc543104398a

Ronald A. Klain writes in the Washington Post:

“Progressives breathed a sigh of relief recently when Justice Anthony M. Kennedy decided to remain on the Supreme Court for presumably at least one more year. But no matter how long Kennedy stays, a massive transformation is underway in how our fundamental rights are defined by the federal judiciary. For while President Trump is incompetent at countless aspects of his job, he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.

Trump’s predecessors all slowly ramped up their judicial nominations during their first six months in office. Ronald Reagan named Sandra Day O’Connor to the Supreme Court and made five lower-court nominations in that period; George H.W. Bush made four lower-court nominations; Bill Clinton named Ruth Bader Ginsburg to the high court but no lower-court judges; and George W. Bush named four lower-court judges who were processed by the Senate (plus more than a dozen others sent back to him and later renominated). The most successful early actor, Barack Obama, named Sonia Sotomayor to the Supreme Court and nine lower-court judges who were confirmed.

What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.

Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.

How conservative are Trump’s picks? Dubbed “polemicists in robes” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute” for trying to find a middle ground on the court, and said that he “strongly disagree[d]” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law that denied counsel to death-row inmates.

Progressives who are increasingly counting on the federal courts to be a bulwark against Trump’s initiatives will increasingly find those courts stocked with judges picked by, and in sync with, Trump. With federal judges serving for life, one might think that the process of dramatically changing the makeup of the federal judiciary would take a long time. But given Trump’s unprecedented pace, in just one more year, one-eighth of all cases filed in federal court will be heard by a judge he appointed.

With the abolition of the filibuster, Trump’s nominees need only the votes of Republican senators to win confirmation. Yes, if Kennedy resigns and Trump nominates someone who might overturn Roe v. Wade, pro-choice Republicans could balk; and a few of Trump’s most outrageous lower-court nominations might be unnerving enough to attract GOP opposition. But the reality is that most of Trump’s rapid-fire, right-wing, youthful lower-court nominations are poised to make it to the bench. ”

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Read the rest of Klain’s article at the link.

If you want to have a say in the shaping of the Federal Judiciary, you have to win the White House, the Senate, or, like the GOP did, both. Elections have consequences, particularly for the losers.

PWS

07-20-17

IN IMMIGRATION CIRCLES, THE ATLANTA COURT IS KNOWN AS “WHERE DUE PROCESS GOES TO DIE” –WILL IT BE THE “NEW NORM?” — The Asylumist, Jason Dzubow, Says “We’re All In Atlanta Now!”

We’re All in Atlanta Now
by JASON DZUBOW on JULY 19, 2017
Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

If you’re feeling down about Georgia exports, here’s something to love.
Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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Somewhat predictable for an Administration that has little or no regard for Constitutional Due Process. That’s why folks need to join the “New Due Process Army” and carry on the fight until better times arrive (and they eventually will)!

As always, thanks to Jason for his incisive analysis!

PWS

07-20-17

NEWSDAY: Judge Dana Leigh Marks Says Independence Is Only Solution For Beleaguered U.S. Immigration Courts! — Years of Political Interference and Mismanagement By Justice Department Have Taken A Toll On Due Process!

2017-7-17-Newsday-DLM-Immigration-Courts-Need-Independence

Judge Marks writes:

“Immigration courts nationwide have a backlog of more than 598,900 cases. In some of our nation’s busiest courts, such cases remain pending more than 500 days. Just more than 300 immigration judges nationwide grapple with this backlog, which increased by 100,000 in the last year alone.

Even more troubling, as the caseload rises, the rate of completing cases has been dropping. And while there are several reasons for this, our courts have been left in the lurch by ineffective management that has failed to provide adequate support staff and strategic planning.

In the past five years, immigration judges have decided more than 1,329,950 cases, but we can do even better. The key is assuring judicial independence and protection from political influences. Removing the immigration courts from the Department of Justice, where the courts are run by politically appointed law enforcement managers subject to the pressures of politics, and placing them in an independent court structure, would insulate them from those pressures and allow them to concentrate on completing cases in a fair way.

When cases are conducted fairly, there is less likelihood of appeal or political attack. More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks. For example, cases would not be docketed to make political statements or serve as a show of force by our government. Rather, they would be on the calendar based on due process needs. Judges need to be allowed to apply their expertise to make their dockets run smoothly and fairly.

Restructuring immigration courts would be a win-win, a solution that would ease the pressures on an overwhelmed system and facilitate timely and fair decisions. Structural reform would go a long way toward assuring we are able to answer the challenges that surely will continue.

Dana Leigh Marks is an immigration judge in San Francisco and president of the National Association of Immigration Judges. The views expressed here are solely those of the author in consultation with the NAIJ.”

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Read Judge Marks’s full, article, which has an excellent succinct description of the important work performed by U.S. Immigration Judges, at the above link.

I agree totally with my good friend and former colleague Dana that an independent Immigration Court is a “win-win.” Pouring more Immigration Judges (particularly with little or no training) into an already dysfunctional system has actually resulted in fewer completions and is almost certain to increase the already disturbing discrepancies in asylum grant rates, etc.

But, getting officials in today’s highly politicized Department of Justice to support such a move is difficult. As I pointed out in an earlier post/article, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/ one of the two reasons that Government officials sometimes fail to act in their own and the country’s best interests is “uncompromising philosophy.”

Jeff Sessions’s extreme anti-immigrant philosophy has led him to eschew “smart” immigration enforcement in favor of a “gonzo” policy of indiscriminate prosecution, jailing, detaining, deporting, and using the Immigration Courts as an adjunct of DHS enforcement, while trying to avoid the Immigration Court system entirely through a policy of increased “expedited removal.” Ultimately, this program, which lacks both credibility and due process, is very likely to fail and lead to a logjam in the Article III Courts. This, in turn, will result in almost nobody getting removed and Article III Judges making decisions about how the Immigration Court system should be run.

I don’t share Dana’s optimism that Sessions could be persuaded to cede his total control over the staffing and functioning of the U.S. Immigration Courts to an independent authority who would run it in accordance with due process. Although that would be in his best interests, I see no evidence that he is reflective enough to get beyond his long history of immigrant bashing and furthering a white nationalist agenda. I’d like to be proved wrong on this, but I wouldn’t hold my breath.

As I have pointed out several times before, when a system with over 600,000 pending cases finally “crashes and burns,” it’s going to take a big chunk of the American justice system with it. Maybe, just maybe, at that point legislators will finally have to do their jobs, step in, and create an independent Immigration Court, with or without the support of the Administration and the DOJ.

PWS

07-19-17

BREAKING: SPLIT DECISION — SUPREMES SAY YES TO GRANDPARENTS, DEMUR ON REFUGEES (FOR NOW)!

Here’s the report from NPR News:

Merrit Kennedy, reporting:

“The Supreme Court has upheld parts of a lower court order that had widened the definition of which citizens from the six Muslim-majority countries covered by the Trump administration’s travel ban are still eligible to travel to the U.S.

The order issued Wednesday leaves in place the action of a U.S. District Court judge in Hawaii who broadened the definition of close family to include categories such as the grandparents and cousins of a person in the U.S.

However, the Supreme Court blocked another part of the lower court order that said citizens with formal assurances from a U.S. refugee resettlement agency are eligible.

Since the travel ban was introduced, defining which citizens from the six countries are exempt has been redefined multiple times.

Last month, as we reported, the Supreme Court ruled that parts of the Trump administration’s ban can take effect while the justices prepare to hear oral arguments on the case later this year.

But the court said people from the six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — can be exempted from the ban if they have a “bona fide relationship” with a person in the U.S., including close family members.

The legal question here is centered on how to define a “bona fide relationship.” As we reported, the Trump administration argued that assurances from a refugee agency are “not sufficient” to constitute this relationship.

However, the judge in Hawaii rejected this argument. “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations,” District Court Judge Derrick Watson wrote. “Bona fide does not get any more bona fide than that.”

The Supreme Court justices, however, stayed that portion of the judge’s order without elaborating. It sent the case back to the 9th U.S. Circuit Court of Appeals for a ruling. The Trump administration had asked the high court to settle the dispute, leapfrogging the 9th Circuit, which the justices denied without comment.

The order said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have stayed the entire lower court order, including the broadening of close family categories.

Naureen Shah, Amnesty International USA senior director of campaigns, stated that Wednesday’s order “jeopardizes the safety of thousands of people across the world including vulnerable families fleeing war and violence.”

Earlier this week, the State Department released new instructions to U.S. embassies and consulates to implement the Hawaii federal court’s order expanded definition of close family to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.”

Here is link to copy of the brief per curium order:

https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf

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Six Justices of the Court appear ready to “just say no” to some parts of the “blanket ban” on the current record. However, they obviously deem “refugees” a closer case, leaving that for the Ninth Circuit to review first. So, there is still a chance that refugees ultimately will prevail. But, as I’ve said many times before, it’s one of the worst times in recent history to be a refugee.

PWS

07-19-17

TRAC: More Judges, Fewer Completions, More Backlog — Now Topping 610,000 — Trump’s Gonzo Immigration Policies Adversely Affecting Immigration Courts!

Subject: Immigration Court Dispositions Drop 9.3 Percent Under Trump

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. The latest available case-by-case data indicate that Immigration Court dispositions have dropped by 9.3 percent since President Trump assumed office. While a larger proportion of this declining total consist of removal orders, cases closed during the past five months (February 2017-June 2017) totaled only 77,084 cases as compared with 84,956 for the same five-month period during 2016.

Under President Trump discretion to defer deporting individuals – irrespective of their circumstances — has largely been abolished. During the first five months of the Trump Administration prosecutorial discretion closures precipitously dropped to fewer than 100 per month from an average of around 2,400 per month during the same five month period in 2016. This decline has contributed to the court’s growing backlog of cases. The backlog reached a record 610,524 cases as of June 30, 2017. This is up from 598,943 at the end of May.

These findings are based upon the very latest case-by-case court records-current through the end of June 2017-that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To read the full report, please go to:

http://trac.syr.edu/immigration/reports/474/

In addition, many of TRAC’s free query tools – which track the court’ backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through June 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

The results speak for themselves as Trump’s gonzo enforcement strategy and gross mismanagement of the U.S. Immigration Courts by the Sessions-led DOJ continue to destroy due process in Immigration Court and burden both taxpayers and the rest of the justice system. Go over to TRAC for the full report.

The Trump Administration is taking ADR — Aimless Docket Reschuffling — to new levels of waste and abuse.

Thanks to Nolan Rappaport for bringing g this to my attention.

PWS

07-18-17

The “Gibson Report” — July 17, 2017

The Gibson Report, July 17, 2017

PWS

07-17-17

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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

Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

Administration Mulls Expansion Of Expedited Removal

https://www.washingtonpost.com/world/national-security/in-memo-trump-administration-weighs-expanding-the-expedited-deportation-powers-of-dhs/2017/07/14/ce5f16b4-68ba-11e7-9928-22d00a47778f_story.html?hpid=hp_rhp-top-table-main_dhsmemo-810pm:homepage/story&utm_term=.793d4747b053

The Washington Post reports:

“The Trump administration is weighing a new policy to dramatically expand the Department of Homeland Security’s powers to expedite the deportations of some illegal immigrants.

Since 2004, the agency has been authorized to bypass immigration courts only for immigrants who had been living in the country illegally for less than two weeks and were apprehended within 100 miles of the border.

Under the proposal, the agency would be empowered to seek the expedited removal of illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days, according to a 13-page internal agency memo obtained by The Washington Post.

The new guidelines, if enacted, would represent a major expansion of the agency’s authority to speed up deportations under President Trump, who has made border security a top priority.

Two administration officials confirmed that the proposed new policy, which would not require congressional approval, is under review. The memo was circulated at the White House in May, and DHS is reviewing comments on the document from the Office of Management and Budget, according to one administration official familiar with the process who spoke on the condition of anonymity.

Joanne F. Talbot, a DHS spokeswoman, said she had not seen the memo. She described it as a draft and emphasized that no final decisions have been made by Homeland Security Secretary John F. Kelly.

“The potential changes would allow DHS to more efficiently use resources to remove persons who have been illegally present for relatively brief periods of time while still observing due-process requirements,” Talbot said.

Immigrant rights advocates denounced the proposed expansion of the expedited deportation authority, warning that the policy would strip more immigrants of due-process rights to seek asylum or other legal protections that would allow them to remain in the country.”

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Read the complete article at the link.

This should come as no surprise, since one of Trump’s Executive Orders on immigration called for such an expansion. The only surprises are 1) that it has taken them so long to get around to it, and 2) that the expansion is limited to those who have been here 90 days or less, rather than “pushing the envelope” to the maximum two-year limit in the statute.

Additionally, the Administration is no doubt aware that Article III judges have lacked the spine to stand up for due process and find the statute unconstitutional. Expedited removal is a travesty of due process. So, this will be a test whether the Article III judiciary is willing to stand up for the Constitution. So far, the prospects for the Constitution are not encouraging.

It’s not surprising that the Administration’s approach to the due process mess in the U.S. Immigration Courts is to avoid due process rather than fix the existing system. But, these measures are unlikely to help much. Almost all of the approximately 600,000 individuals currently in Immigration Court, and probably 95% of the 10-11 million plus individuals already in the U.S., have been here for 90 days or more.

PWS

07-14-17

BREAKING: GRANDPARENTS, REFUGEES WIN, TRUMP LOSES (AGAIN) — JUDGE WATSON EXPANDS TRAVEL BAN EXCEPTIONS!

Here’s U.S. District Judge Derrick Watson’s full opinion:

https://assets.documentcloud.org/documents/3894503/Hawaii-v-Trump-Motify-Injunction-Order.pdf

KEY EXCERPTS

“PREDETERMINED AND UNDULY RESTRICTIVE:”

“First, the Government’s utilization of the specific, family-based visa provisions of the INA identified above constitutes cherry-picking and resulted in a

predetermined and unduly restrictive reading of “close familial relationship.” Other, equally relevant federal immigration statutes define a close family in a much broader manner.”

“ANTHESIS OF COMMON SENSE:”

“In sum, the Government’s definition of “close familial relationship” is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it.

Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be. See generally Klayman v. Obama, 142 F. Supp. 3d 172, 188 (D.D.C. 2015) (noting that courts should not “abandon all common sense” when considering injunctive relief).”

“BONA FIDE DOES NOT GET ANY MORE BONA FIDE THAN THAT:”

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. See Slip Op. at 12. Bona fide does not get any more bona fide than that.11 Accordingly, Plaintiffs’ Motion is granted with respect to this specific request for injunctive relief.”

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PWS

07-14-17

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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Gee, who needs training when things like this can get through the system?

PWS

07-13-17

UNTRAINED JUDGES + GONZO POLICIES = DUE PROCESS NIGHTMARE IN U.S. IMMIGRATION COURTS!

https://www.washingtonpost.com/opinions/immigration-judges-were-always-overworked-now-theyll-be-untrained-too/2017/07/11/e71bb1fa-4c93-11e7-a186-60c031eab644_story.html?hpid=hp_no-name_opinion-card-e%3Ahomepage%2Fstory&utm_term=.35cde7464fad

Sarah Sherman-Stokes writes in an op-ed in today’s Washington Post:

“Sarah Sherman-Stokes is a clinical instructor and the associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.

America’s immigration judges have long been overburdened and under-resourced. One immigration judge has compared her job to “doing death-penalty cases in a traffic-court setting.” The stakes are high, while support and procedural protections for noncitizens facing deportation are negligible. It’s no surprise, then, that immigration judges suffer greater stress and burnout than prison wardens or doctors in busy hospitals.

Now, the Trump administration is making a difficult situation almost untenable. In an effort to expand and accelerate the deportation machine, the Trump administration has hit immigration judges with a one-two punch: dramatically increasing their caseloads and, at perhaps the worst time, canceling the annual week-long training conference for immigration judges. The impact on the entire removal system — and, more importantly, on the rights and lives of our most vulnerable noncitizen neighbors — will be devastating.

On average, an immigration judge completes more than 1,500 cases per year, with a ratio of 1 law clerk for every 4 judges, according to a recent report of the National Association of Immigration Judges. By comparison, the typical district court judge trying civil suits has a pending caseload of 400 cases and three law clerks for assistance.

This imbalance is poised to deteriorate even further. In January, the administration issued an executive order that effectively repealed and replaced a tiered system of immigration enforcement and removal priorities crafted by the Obama administration, which focused deportation efforts on the most serious offenders. President Trump’s executive order places a priority on every noncitizen suspected of violating the law. This includes noncitizens who have been charged with (but not convicted of) any offense or who have committed acts that constitute a criminal offense (though they have been neither charged nor arrested). In fact, a recently leaked February 2017 memo from an Immigration and Customs Enforcement official is even more explicit, instructing ICE agents to “take enforcement action against all removable aliens encountered in the course of their duties.” It adds that the agency “will no longer exempt classes or categories of removable aliens from potential enforcement.”

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Read the complete article at the link.

How much longer does this due process and administrative disaster have to go on before the U.S. Immigration Courts are taken out of the Justice Department and authorized to operate as an independent Article I judiciary?

PWS

0712-17

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