Board of Immigration Appeals (“BIA”) – Page 75

BARR CONTINUES RESTRICTIONIST ASSAULT ON IMMIGRATION COURTS: Intends To Reverse BIA Precedents Giving “Full Faith & Credit” To State Court Sentence Modifications — Another Disingenuous Request For “Amicus Briefing!”

https://www.justice.gov/eoir/page/file/1166251/download

Cite as 27 I&N Dec. 556 (A.G. 2019) Interim Decision #3954

556
Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General May 28, 2019
U.S. Department of Justice
Office of the Attorney General
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer these cases to me for review of its decisions. The
Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist me, I invite the parties to these proceedings and interested amici to
submit briefs that address whether, and under what circumstances, judicial
alteration of a criminal conviction or sentence—whether labeled “vacatur,”
“modification,” “clarification,” or some other term—should be taken into
consideration in determining the immigration consequences of the
conviction.
The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before June 28, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before July 12, 2019. The parties may submit reply briefs
not exceeding 6,000 words on or before July 12, 2019. All filings shall be
accompanied by proof of service and shall be submitted electronically to
AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

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

Like Barr’s entire tenure and continued interference with Due Process and judicial independence in the Immigration Courts, it’s highly unethical.

Nobody outside the White Nationalist restrictionist enclave would have any interest in revisiting the BIA’s reasonable rulings, going back more than a decade and one-half, recognizing sentence modifications entered by judges in criminal cases, mostly in state courts. Matter of Song, 23 I&N Dec. 173 (BIA 2001) and Matter of Cota Vargas, 23 I&N Dec. 843 (BIA 2005).

Indeed, this action does not appear to have have been generated by any actual party participating in Immigration Court litigation or by any pending Circuit Court litigation. It has nothing to do with the current “border crisis” that has paralyzed this Administration’s immigration bureaucracy.

Rather, it appears to be part of a concerted politically-based attack on migrants and the independence of the Immigration Court system orchestrated by restrictionist groups outside of government who use unscrupulous and willing senior officials like Barr, and Sessions before him, as operatives.

After ignoring all of the compelling arguments favoring the current precedents, Barr will basically “adopt” or “adapt” Judge Roger Pauley’s dissenting opinion in Matter of Cota. The decision likely has already been drafted along the lines of the restrictionist groups’ agenda for stripping migrants of the few rights they still retain in what was already a bogus “court” system where the law had intentionally been skewed against them and in favor of DHS for political reasons.

The only question is whether the Article III Courts will continue to put up with Barr’s “charade of justice at Justice.” We’ll see. But, at some point, the damage to our system being inflicted by dishonest and unethical officials like Barr might become irreparable.

PWS

05-30-19

COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!

Here are the head notes from two new BIA decisions distinguishing Pereira:

https://www.justice.gov/eoir/page/file/1164976/download

Matter of Lourdes Suyapa PENA-MEJIA, Respondent

27 I&N Dec. 546 (BIA 2019)

Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

https://www.justice.gov/eoir/page/file/1164981/download

Matter of Renata MIRANDA-CORDIERO, Respondent

27 I&B Dec. 551 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

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

But here’s some better news from a split 9th Circuit:

Isaias Lorenzo Lopez v. William P. Barr, 9th Cir., 05-22-19, published

15-72406

Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Korman;
Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

SUMMARY BY COURT STAFF:

SUMMARY** Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and- place information.
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza- Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued

4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.

**********************************
Significantly, the Ninth Circuit majority recognized the “vigorous” dissent of Judge John Guendelsberger in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), which was joined by Vice Chair Adkins-Blanch and Appellate Immigration Judges Cole, Grant, Creppy, & Kendall Clark. The Ninth Circuit essentially adopted the dissenters’ opinion, quoting at length:

The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [8 U.S.C. § 1229(a)(1)] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plain text” of the “stop- time” rule and left no room for agency gap- filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1)] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.

16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted).

Prior to the “Ashcroft Purge, “ completed in 2003, en banc opinions in precedents and “vigorous dissents” were much more frequent at the BIA. I know, because I frequently was among the dissenters, particularly in the latter days of my BIA career.

Well done dissenters! Bravo!

Given the more or less “built in pro-Government bias” of an administrative “court” captive within the DOJ, the dissents often contained important alternative viewpoints that sometimes were more in accordance with the law as later interpreted by the “real” Article III Courts upon judicial review. The en banc process also forced every BIA Appellate Immigration Judge to take a public position on important issues.

In that way, it promoted both transparency and accountability, as well as “putting into play” alternative interpretations and results that the majority otherwise would “blow by.” Accordingly, it also promoted more rigorous analysis by the majority.

Ashcroft basically removed the “gang of dissenters” from the BIA while “dumbing it down” by mandating mostly “single member panels,” discouraging en bancs, and supressing dissents. Since that time, the quality of the BIA decisions has suffered, and the positions of most individual BIA judges on most precedent issues has become a “mystery.” Not surprisingly, the BIA jurisprudence post-Ashcroft has become very one-sided in favor of the DHS.

The “vigorous en banc dissent” in Matter of Mendoza-Hernandez was striking to observers as the first one in recent memory. And, clearly it made a difference. The lack of meaningful dissent at the BIA is one of many things that have degraded due process, judicial independence, and decisional quality at EOIR since the “Ashcroft Purge.” Worse yet, Barr’s ludicrous “proposed regulations” would further “dumb down” the BIA process.

The importance of dissents and transparency in a legitimate judicial system can’t be overstated. That’s why we need an independent, Article I U.S. Immigration Court that does not answer to the Attorney General.

PWS

05-28-19

FOURTH CIRCUIT EXPOSES EOIR’S CONTINUING BIAS AGAINST REFUGEES FROM THE NORTHERN TRIANGLE — “Here, as in [two other published cases], the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.” – Orellana v. Barr — Yet 4th Cir.’s “Permissive Approach” To Malfeasance At The BIA Helps Enable This Very Misconduct To Continue! — When Will Worthy, Yet Vulnerable Asylum Applicants Finally Get Justice From Our Courts?

ORELLANA-4TH-DV181513.P

Orellana v. Barr, 4th Cir., 04-23-19, published

PANEL: MOTZ, KING, and WYNN, Circuit Judges

OPINION BY: JUDGE MOTZ

KEY QUOTE:

In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.

Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.

First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,

3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.

9

Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.

The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”

Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).

10

The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.

Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.

First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.

Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11

cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.

Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.

Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from

12

dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4

We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.

We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.

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

This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence. See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years. It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law. We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!

PWS

05-25-19

BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court

https://www.wnyc.org/story/presiding-under-pressure/

On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.

In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.

It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.

In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.

Here is what we learned.

Judges Who Worked for ICE or the Justice Department

Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.

(Jane Rosenberg for WNYC)

Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.

Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.

During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.

The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.

Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.

“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”

It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.

Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.

Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.

(Jane Rosenberg for WNYC)

Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.

He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”

According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.

Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.

In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.

Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.

Judges Who Used to Represent Immigrants

Judges Howard Hom, Maria Navarro and Charles Conroy.

(Jane Rosenberg for WNYC)

Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.

Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.

“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”

Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.

In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”

But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”

Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.

Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.

Judges With No Immigration Trial Experience

Judges Samuel Factor, Oshea Spencer and Brian Palmer.

(Jane Rosenberg for WNYC)

Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.

Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.

Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.

Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.

“On the Brink of Collapse?”

This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.

According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.

The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.

Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.

“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.

Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.

Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.

(Courtesy of National Association of Immigration Judges)

In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”

But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”

Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”

This month, the judges union and a coalition of former judges each wrote stern letters to the Justice Department for releasing “wildly inaccurate and misleading information” in a fact sheet it released to the media about the courts.

A New Path for Immigration Court

An empty judge’s chair in New York City’s immigration court.

(Jane Rosenberg for WNYC)

The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.

The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.

The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.

An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.

“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.

There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.

Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.

Varick Street has been in the news because of a lawsuit. Hearings there are held by video for detainees. Now, the trial attorneys at regular hearings appear by video. Immigration lawyers have complained about this process.

The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.

PWS

05-22-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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PWS

05-20-19

ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

https://www.npr.org/2019/05/19/724851293/how-trumps-new-immigration-plan-will-affect-backlog-of-pending-cases

Here’s the transcript:

LAW

How Trump’s New Immigration Plan Will Affect Backlog Of Pending Cases

5:40

DOWNLOAD

TRANSCRIPT

May 19, 20195:35 PM ET

Heard on All Things Considered

NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.

Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.

Mr. Chase, welcome. Thank you so much for joining us.

JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…

MARTIN: It does.

CHASE: It worked out.

MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?

CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.

So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.

MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?

CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.

MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?

CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.

MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?

CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.

And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.

MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?

CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.

MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.

Jeffrey Chase, thank you so much for talking to us.

CHASE: Thank you so much for having me on the show.

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

Go to the link for the full audio from NPR.

I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”

PWS

05-21-19

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

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

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

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

05-20-19

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

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

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

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

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

6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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*****************************************

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

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

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

PWS

05-16-19

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

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

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

SPLIT EN BANC BIA MOVES TO LIMIT SUPREME’S PEREIRA RULING: Matter of MENDOZA-HERNANDEZ CAPULA-CORTES 27 I&N Dec. 520 (BIA 2019)

matter_of_mendoza-hernandez_capula-cortes_27_in_dec._520_bia_2019

Matter of MENDOZA-HERNANDEZ CAPULA-CORTES, 27 I&N Dec. 520 (BIA 2019)

HEADNOTE BY BIA STAFF:

A deficient notice to appear that does not include the time and place of an alien’s initial removal hearing is perfected by the subsequent service of a notice of hearing specifying that missing information, which satisfies the notice requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), followed.

BIA EN BANC:

MAJORITY OPINION: BIA APPELLATE IMMIGRATION JUDGE GREER, JOINED BY NEAL, Chairman; MALPHRUS, WENDTLAND, MULLANE, MANN, O’CONNOR, LIEBOWITZ, and KELLY, APPELLATE IMMIGRATION JUDGES

DISSENTING OPINION: APPELLATE IMMIGRATION JUDGE GUENDELSBERGER, JOINED BY ADKINS-BLANCH, Vice Chairman; COLE, GRANT, CREPPY, KENDALL CLARK, APPELLATE IMMIGRATION JUDGES

KEY QUOTE FROM DISSENT:

Congress, in section 240A(d)(1)(A) of the Act defined the event that triggers the “stop-time” rule as “service of a notice to appear under section 239(a).” The Court in Pereira, 138 S. Ct. at 2114–15, held that Congress’ reference to “service of a notice to appear under section 239(a),” means a “notice to appear” as defined in section 239(a)(1) of the Act. The Court also held that, “[b]ased on the plain language of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id. at 2114 (alteration in original) (quoting section 239(a)(1) of the Act). As the Court concluded, “At the end of the day, given the clarity of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20. The plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.

For these reasons, neither the service of the notice to appear nor the subsequent service of a notice of hearing on the respondents triggered the “stop-time” rule for purposes of cancellation of removal under section 240A of the Act. We therefore respectfully dissent.

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

It’s very unusual these days for the BIA to sit en banc. That means in most precedent cases we only know what the 3–Judge Panel thought and that at least 8 Judges on the en banc BIA agreed to publication (regardless of whether they agreed with the result).

This won”t happen at all under Barr’s new “Dumb Down the BIA Proposal.” The BIA will be diluted into “regional adjudication centers.” Any panel of three “Judges” (actually reduced to the role of DOJ adjudicators working for one of the Administration’s immigration enforcement politicos) could designate a precedent by majority vote. Thus, a two-Judge panel majority could create a precedent over the objection of a dissenting Judge and without dialogue with or approval of their many colleagues. Nice way to run the “railroad.”

Congrats to the six dissenting Judges who stood up for the better view of the law! It might not help your careers in today’s DOJ, but it is encouraging to know there is some internal resistance to Barr’s one-sided “deportation railway.”

If the dissenters are correct, the majority’s view could cause incredible additional disruption, “aimless docket reshuffling,” “do-overs,” and unfairness in an already dysfunctional system. That’s because tens of thousands of cases that would face summary denial for failure to meet the ten-year cutoff under the majority’s view would be entitled to full merits hearings on their cancellation of removal applications under the dissenters’ view.

Once again, lives will be in limbo while the Article III Courts work through all of the legal implications of EOIR’s acquiescence and participation in the DHS’s conscious decision to ignore the “Notice to Appear” requirements set forth by Congress in the INA.

PWS

05-03-19

WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

The fee would put the United States out of step with most of the world, as the vast majority of countries do not require asylum seekers to pay any fee. Given the dire circumstances many asylum seekers come from, including economically, critics worry the fee would prove a barrier to those with legitimate claims.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

[The surge in migrants seeking asylum, explained]

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

The proposed changes will likely take some time to implement, if they ever are. Attorney General William P. Barr has 90 days to come up with a plan, and the move will undoubtedly be challenged in court.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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

Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.

It’s not rocket science — more like basic governing competence. Here are the elements:

Establish an independent Article I U.S. Immigration Court;
Invest in representation of asylum seekers;
Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
Reduce immigration detention;
Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.

PWS

05-01-19

TRUMP’S LATEST ATTACK ON ASYLUM PROMISES MORE “MALICIOUS INCOMPETENCE” — Doubles Down On “Proven Failures” As New Poll Shows Americans Reject Harsher Approach To Asylum Law By 2-1 Margin!

https://www.huffpost.com/entry/trump-asylum-memo_n_5cc7c8f5e4b07c9a4ce82527

Dominique Mosbergen reports for HuffPost:

Declaring the U.S. asylum system to be “in crisis,” President Donald Trump directed immigration officials on Monday night to introduce a slew of tough new rules for migrants seeking humanitarian protection in the United States.

The measures, outlined in a presidential memorandum, include the introduction of a fee for asylum applications and banning asylum seekers who’ve entered the U.S. illegally from receiving work permits. The memo also calls for the adjudication of asylum applications within 180 days.

The new rules, Trump said, are aimed at safeguarding “our system against rampant abuse of our asylum process.”

. . . .

It currently costs nothing for someone to file for asylum in the United States and immigration experts have warned that even a small fee could prove to be an impossible burden for some migrants seeking refuge. As The Washington Post noted, a vast majority of countries do not impose a fee on asylum claims.

“The majority of people coming to the United States seeking asylum are coming with little more than the shirts on their back,” Victoria Neilson, a former official at U.S. Citizenship and Immigration Services, told Reuters.

Trump, who’s repeatedly lambasted migrants for exploiting what he says are legal loopholes in the asylum system, also ordered asylum seekers who’ve entered the country illegally to be banned from obtaining work authorization “before any applicable application for relief or protection from removal has been granted.” Currently, asylum seekers who’ve entered the U.S. both legally and illegally are allowed to work while their claims are pending.

“There’s a reason that we give people work permits while they are waiting for asylum, so that they can support themselves and don’t have to be depending on government assistance during that time,” Michelle Brané of the Women’s Refugee Commission told The New York Times.

. . . .

The memo also demands that all asylum applications, save for those involving “exceptional circumstances,” are adjudicated in immigration court within 180 days of filing.

As the Post noted, U.S. law already dictates that asylum cases are adjudicated within that time ― but due to an overwhelming number of cases and inadequate resources, asylum seekers can often wait years before their claims are processed.

“The provision to process cases in 180 days has been on the books for over two decades,” Ashley Tabaddor, president of the immigration judges’ union, told the paper. “The problem is that we have never been given adequate resources to adjudicate those claims in a timely fashion.”

Trump has directed Attorney General William Barr and Acting Homeland Security Secretary Kevin McAleenan to introduce the new asylum regulations within 90 days. Immigration advocates, however, are expected to challenge the measures in court.

The administration is already involved in several court battles over earlier changes to U.S. asylum rules, including the so-called “remain in Mexico” policy requiring some asylum seekers to return to Mexico to await court hearings.

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

QUICK TAKES:

Regulatory Incompetence. Changing legal regulations requires 1) notice and an opportunity for public comment; and 2) a rational legal explanation for the proposed changes. So far, the Trump Administration has shown little ability for either. Indeed both their “preferred method” of policy change by “Executive Action” (e.g., DACA) and past attempts to change regulations (e.g., barring asylum for illegal entrants) have often ended up blocked or modified by the courts.
Time Limits Don’t Work. The current law, INA s. 208(d)(5)(A)(iii), already provides a statutory 180 day limit for asylum adjudications. But it has never been achievable in practice for various reasons including due process, chronic understaffing of Immigration Courts, and unavailability of private counsel. It might be possible to develop a system that could fairly process the vast majority of asylum claims through the Immigration Judge level within 180 days. But, that would require three things that an Administration committed to “malicious incompetence” has rejected: 1) clearing most of the 1.3 million backlogged cases off Immigration Court dockets through aggressive use of “prosecutorial discretion” (“PD”) as a first step toward a much-needed legalization program; 2) working cooperatively with NGOs, states, and municipalities to provide universal representation of asylum seekers; and 3) granting many more asylum cases at the Asylum Office and Immigration Court level.
The Administration Doesn’t Control Article III Courts (Yet). As the Immigration Courts and the BIA become more biased against asylum seekers, more individuals will seek review by the Article III Courts. The number of cases in the Article IIIs, who operate largely beyond the Administration’s control, is likely to grow exponentially. “Fake timetables” (on top of the mindless “deportation quotas” already in effect for Immigration “Judges”) result in “haste makes waste” poor quality at EOIR that, in turn, leads to lots of remands from the Article IIIs, thereby further clogging the Administrative system.
“Asylum Only” Hearings Aren’t Substantively Different From “Full” Removal Hearings. Trump reportedly would like to limit asylum seekers to “Asylum Only” hearings where asylum, withholding of removal, and relief under the Convention Against Torture are the only forms of relief available. But, few recently arrived asylum seekers apply for other forms of relief “right off the bat.” The major difference is often eligibility for bond in a “full removal hearing.” But, AG Barr has already acted to make most who pass “credible fear” ineligible for bond in his recent precedent Matter of M-S-, overruling 15 years of contrary BIA law originating in the Bush II Administration. The due process limitations on indefinite detention of asylum seekers will be fought out in the Article IIIs regardless of whether the Administration uses “Asylum Only Proceedings” or “Full Removal Proceedings.” And, so far, the Administration has consistently lost on the Constitutional issue in the lower Federal Courts.
Article IIIs Have Already Slammed This Administration’s Prior Attempts To Illegally Misconstrue Asylum Law To Reduce The Number Of Positive “Credible Fear” Determinations. Sessions & Nielsen already unsuccessfully tried to game the credible fear system against legitimate asylum seekers. They were strongly rebuked by U,S. District Judge Emmet Sullivan (DC) in Grace v. Whitaker. Judge Sullivan barred Immigration Judges from using most of Session’s erroneous Matter of A-B- precedent in “credible fear reviews.” He also required USCIS to rewrite its “Credible Fear” instructions to restore the generous intent of the law. It’s likely that what Trump is seeking to do will run afoul of Judge Sullivan’s order. Sullivan isn’t afraid to hold Cabinet officials accountable. So, while Trump himself might be beyond the court’s reach, “Trump‘s Chumps” McAleenan and Barr might want to have their jail bags packed and check their personal liability insurance before accepting Trump’s invitation to violate the law. Also, the Administration’s actual and threatened misuse of “expedited removal” in an attempt to implement a “lawless credible fear” policy has inspired the Ninth Circuit to recognize a right to appeal to the Article IIIs, even in expedited removal. THURAISSIGIAM v. USDHS, https://immigrationcourtside.com/2019/03/07/9th-cir-says-statute-barring-meaningful-judicial-review-of-expedited-removal-process-violates-constitutions-suspension-clause-throws-monkey-wrench-into-administra/ In other words, the field that Trump is mindlessly ordering McAleenan and Barr to plow has already been largely ruled “off limits” by the Article IIIs.
While Imposing Fees For Asylum Applications Is Undoubtedly Cruel, Unnecessary, & Unprecedented, It Won’t Be A Long-Term Deterrent. By misusing “metering” to make it difficult or impossible to apply for asylum at legal ports of entry the Administration already has increased smuggling fees, made routes more dangerous for asylum seekers, and predictably increased the number of illegal entries to apply for asylum; but, it hasn’t “deterred” asylum seekers. It just shifted the traffic from legal ports of entry where it could have been more easily controlled to other places on the border, where it’s harder to control. Stupid? Yeah, of course. Basically, the Trump Administration now wants to get in on the financial bonanza it has created for human smugglers by charging its own version of illicit fees. While cruel and punitive, it’s unlikely to have much impact on the flow of refugees.
Denial Of Work Authorization Will Create Hardship, Without Deterrence, & Actually Hurt Our Economy. Under current law, asylum seekers can’t get work authorization for at least 180 days. If the Administration really were able to fairly process asylum applications in that period, there actually wouldn’t be much need for work authorization. Also, work authorization doesn’t apply to those detained for asylum hearings and most juveniles. Assuming that legitimate asylum applicants continue to get released and shunted into the backlogged Immigration Court system, denial of work authorization will deprive them of the opportunity to use their (usually ample) skills to be self-supporting and contribute to our economy, regardless of whether they ultimately are granted asylum. Many such folks will now be forced into the “underground economy” where they are more likely to be both underemployed and exploited by unscrupulous employers. Trump is turning a “win-win” into a “lose-lose.” But, it’s unlikely to deter those fleeing for their lives.
Eventually, Trump’s “Malicious Incompetence Approach” Might Convince Asylum Seekers That Our Legal System Is A Cruel Farce That Must Be Avoided. Smugglers will simply take refugees into the interior of the U.S. for higher fees. They will stop turning themselves in to use a bogus legal system. Some will die; a few will get caught and removed; but, the chances of entering illegally and losing oneself in the U.S. for as long as one wants are probably much better than the chances of getting legal asylum in Trump’s increasingly bogus, biased, and dishonest system.
Two Things Are For Certain: 1) Desperate People Will Continue To Come No Matter What Trump Does On This End; and 2) Once Trump Destroys The Legal Asylum & Immigration Systems, They Won’t Easily Be Rebuilt. The result will be a permanent “immigration underground/black market.” That’s a “lose-lose” that will be horrible for migrants, but even worse for America’s future.

Coming up: A New Washington Post/ABC Poll Shows Little Public Support For Trump’s Harsher Asylum Policies.

PWS

04-30-19

READ MY SPEECH TO THE LOUISIANA STATE BAR IMMIGRATION CONFERENCE IN NEW ORLEANS ON APRIL 26, 2019 — “GOOD LITIGATING IN A BAD SYSTEM”

GOOD LITIGATING IN A BAD SYSTEM

PAUL WICKHAM SCHMIDT

UNITED STATES IMMIGRATION JUDGE (RETIRED)

LOUISIANA STATE BAR IMMIGRATON CONFERENCE

NEW ORLEANS, LA

April 26, 2019

Good afternoon. Thanks so much for inviting me and coming out to listen. Most of all, thank you for what you are doing to save our legal system and preserve our democracy. For, nothing less is at issue here.

Jeremy talked this morning about the supreme satisfaction of seeing smug, uncooperative, unresponsive, scofflaw bureaucrats hauled into court and forced to follow the law. There isn’t much a bureaucrat, particularly one working in this particular Administration, fears more than the law.

In my life, the comparable feeling of satisfaction was when a Court of Appeals reversed my wrong-headed colleagues at the BIA on the basis of one of my frequent dissents or having a Court of Appeals reverse the BIA for incorrectly reversing my decision as an Immigration Judge granting relief.

Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

My good friend and colleague Dr. Triche gave you the “scholarly side” of immigration appeals. Now, I’m going to take you over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process, fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I’m going to tell you twelve things that you and your colleagues need to do to win the war against the forces of darkness and anti-Constitutional bias who have seized control of our justice system and aim to destroy it.

I, of course, hold harmless Dr. Triche, the Louisiana State Bar, Woody’s law firm, all of you, and anyone else of any importance whatsoever for the views I express this afternoon. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call!

II.

First, get everyone represented. That’s why it’s so important that you are all here today. Next time, I hope this meeting will be in the Mercedes-Benz Superdome!

Today’s “deportation railroad” operates on the assumption that it will be able to ramp up “numbers,” boost “productivity,” and promote bad law and worst practices by shooting unrepresented individuals “like fish in a barrel.” We know that representation increases success – sometimes by as much as 14 times.

Second, remember that there still are “pockets of due process and fundamental fairness” out there – pockets of resistance, if you will. These are Immigration Judges and sometimes ICE Assistant Chief Counsel who are courageous and honest enough to insist on a properly fair and generous interpretation of asylum law, procedural due process, reasoned decisions, and impartial judging. This is in the overall context of a DOJ that encourages and fosters overt anti-asylum bias, prejudgment, unprofessional treatment of lawyers, bullying of respondents, and predetermined results as part of a concerted effort to both discourage representation and “deter” bona fide asylum seekers from applying.

It’s critically important that you provide these “good guy” judges and counsel with the detailed, plausible, and consistent testimony, strong corroborating records, and cogent legal arguments to allow them to do the right thing while being “covered” in the case of likely attacks by “higher ups” for following the law, treating applicants and their representatives with dignity, and often granting asylum.

Third, if you are relying on “particular social groups” (“PSGs”) state them clearly on the record at the outset to satisfy BIA requirements. The BIA will not allow you to develop new social groups on appeal — even where they might be obvious from the record below.

Fourth, insure that PSGs meet the BIA’s three criteria: 1) immutable or fundamental to identity; 2) particularized; and 3) socially visible. Where applicable, don’t shy away from inclusive groups that clearly meet the BIA’s criteria like “women in Guatemala” or “gay men in Honduras.”

For too long, advocates have been “going along” with a “gradualist approach.” That favored limited, highly particularized, social groups designed to ease and appease the Government’s often bogus “floodgates fears” and thereby to win government cooperation in a gradual, positive, and progressive development of the asylum law consistent with Matter of Acosta, the BIA’s seminal precedent on PSGs.

Jeff Sessions clearly showed in Matter of A-B- why cooperation with the Government in a “captive” court system, without ingrained values or a strong basis of intellectual honesty, is too risky. It’s time to vindicate the full coverage of gender-based persecution under the refugee definition.

Fifth, argue politics where applicable. The BIA and some appellate courts have willfully misconstrued the reality of conditions in the Northern Triangle. Gangs in the Northern Triangle aren’t a bunch of neighborhood delinquents hanging out on the local street corner pestering kids and stealing lunch pails. No, they are powerful armed forces that have infiltrated and compromised governments, in many areas operating as “de facto governments.”

For Pete’s sake, in El Salvador gangs are reportedly the largest single employer. They have actually negotiated now-failed “peace accords” with the government. Of course, in those situations, quite contrary to disingenuous statements in BIA precedents, opposition and resistance to gangs is considered to be a “political act” that will be harshly punished.

Don’t rely just on mealy-mouthed State Department Country Reports that have been compromised by this Administration’s political agenda. Attack the reliability of State Department Reports with real experts and more reliable resources. Insist that reality be part of the record of proceedings no matter how much individual Immigration Judges or the BIA might want to ignore it.

Sixth, document the systematic truncations of due process in Immigration Court. These days, denial of merits hearings; arbitrary limits on testimony, evidence, and arguments to meet inappropriate production quotas; limitations on client access; capricious denials of continuances; frequent disparate treatment when EOIR and DHS shuffle and reprioritize dockets for no good reason; lack of notice; use of idiotic form decisions and woefully inadequate, analysis-free oral decisions as a substitute for reasoned analysis; and increased use of “summary affirmances” rubber stamping clearly defective Immigration Judge decisions are commonplace. It’s “haste makes waste to the Nth degree” imposed by the DOJ politicos. Expose these travesties and abuses! Make the record for review by “real” Article III Courts.

Seventh, limit to its facts Session’s outrageous attempt to turn back asylum law decades in Matter of A-B-. At the end of 30 pages of disingenuous “babble” and erroneous legal analysis, Sessions actually resolves nothing more than to vacate Matter of A-R-C-G-. It’s almost all dicta; vicious and misogynistic dicta, but dicta nevertheless.

Read Judge Emmet Sullivan’s outstanding opinion in Grace v. Whitaker cataloguing Sessions’s many errors and misrepresentations. The result in the BIA’s A-R-C-G- was clearly correct on the facts presented – so much so that it was uncontested by either party! Yes, some judges follow the erroneous dictum even deny hearings. Object, make your record, appeal, and hold these wrong-headed “jurists” accountable.

It’s frustrating to have to establish A-R-C-G-‘s correctness again and again for no good reason, but it’s what we have to do. It also won’t hurt to point out to the Article III’s how Sessions’s unjustified and biased actions have actually made the hearing system more unnecessarily complicated and inhibited fair, consistent, and efficient processing of asylum grants.

Eighth, apply for bond notwithstanding Barr’s unconstitutional attempt in Matter of M-S- to eliminate bond for those who have passed the credible fear process. Take the Fifth Amendment constitutional issue to the U.S. District Courts on habeas every time. Let them see firsthand what passes for “due process” and “justice” in today’s Immigration Courts.

The Ninth Circuit and several U.S. District Courts have already indicated that Government’s implementation of indefinite detention can’t pass constitutional muster under the Fifth Amendment. Keep the defeats coming for the DOJ and maintain the focus of the Article IIIs on how the DOJ’s arrogant and wasteful maladministration of the U.S. Immigration Courts is screwing up the entire U.S. justice system.

Ninth, if you lose below, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed me as one of its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

Yes, I know, as we heard earlier, many “real” Federal Judges don’t like immigration cases. “Tough noogies” — that’s their job!

Tenth, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Eleventh, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confronted with their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Twelfth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

III.

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) get everyone represented; 2) nourish the “pockets of due process;” 3) clearly define social groups; 4) use the BIA’s three-part test for defining PSGs; 5) argue politics; 6) document systematic truncations of due process; 7) limit Matter of A-B-; 8) apply for bonds; 9) take appeals; 10) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 11) make the historical record; and 12) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.”

The antidote to “malicious incompetence” is “righteous competence.” Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration will drive the Immigration Courts over the edge.

(04-27-19)

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

PWS

04-28-19

COLLISION COURSE: 3rd Cir. Case Shows How Article III Courts’ Demand For Cogent, Detailed Analysis From Immigration Judges Will Collide Head On With Barr’s Plans To Further “Dumb Down” The Immigration Court System! — Result Could Flood Article IIIs With More “Idiot Orders!” — Liem v. Attorney General

181955p

Liem v. Attorney General, 3d Cir., 04-19-19, published

PANEL: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION BY: Judge Rendell

KEY QUOTE:

Because the BIA did not explain its conclusion and did not meaningfully consider much of the evidence presented by Liem, we will grant his petition for review, vacate the denial of his second motion to reopen, and remand to the BIA for further proceedings consistent with this opinion. In doing so, we do not decide whether Liem has shown materially changed conditions in Indonesia warranting reopening of his removal proceedings. Rather, we conclude that the abovementioned evidence contradicting the BIA’s determination is strong enough to require the BIA to afford it more thorough consideration. We remand for the BIA to meet its heightened duty and meaningfully consider all of the evidence, which may or may not yield a different result.

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

Welcome tho the world of today’s BIA, where it’s all about numbers — who cares about analysis.

And, Barr fully and contemptuously intends to make it even worse — stuff it down the throats of the Article IIIs — by encouraging more use of non-analytical “summary affirmances” at the same time that Immigration Judges are being pushed to enter more “idiot orders” denying relief without any real reasoning. Then, he’s going to count on “Trump’s Chumps” among the Article IIIs to “Chevron” and “Brand X” themselves right out of existence.

So, we’re about to find out how much integrity the Article IIIs really have. Will they resist and appropriately “stuff” Barr’s blatant, unethical attempt to shift the “backlog” to them by “just saying no” and returning these cases en masse? Will they finally step up to the plate and rule this entire Immigration “Court” farce unconstitutional, halting most removals until Congress establishes a Due Process compliant independent system?

Or, as Trump, Sessions, and now Barr count on, will they function as “Trump’s Chumps,” mere “stationmasters on the deportation railroad” whose job it is to count the cattle cars of humans heading south? Folks in robes willing to “go along to get along” with the “new Jim Crows” by tanking their responsibility to enforce the Constitution for migrants. Just “defer” to non-existent analysis and parodies of court proceedings because we’re dealing with the vulnerable who can’t fight back.

History will be watching how they perform. So far, Trump & Co. haven’t been completely right, particularly about the lower Federal Court judiciary. They have encountered quite a few judges appointed by both parties ready and willing to stop the Administration’s all out assault on the rule of law and our Constitution.

But, the Trumpsters haven’t been completely wrong about the higher Federal Courts either. The totally disingenuous performance of the “Trump Chump Five” during oral argument this past week at the Supremes on the “Census Case” — a “no brainer” teed up by the lower courts that an impartial and functional Court would have used to deliver a resounding 9-0 rebuke of Trump’s “DOJ Legal Sycophant Ethics-Free Team” — could have been scripted by Stephen Miller with a little help from Steve Bannon.

The big problem here is that folks in the “ivory tower” of the U.S. Circuit Courts and the Supremes operate outside the real world. They don’t seem to be able to picture themselves or their families or loved ones in the cattle cars heading south on the railroad. Indeed, unlike trial judges, they don’t even have to face the folks they are disenfranchising, dehumanizing, and whose legal rights they are trashing.

Their failure to connect the law with humanity, human rights, moral values, and simple fundamental fairness may well be the downfall for all of us. At some point, they might find that the “Liar-in-Chief” and his toadies no longer need their stationmasters — that complicit judges have become as dispensable as the humans whose lives and rights they have failed to protect.

PWS

04-27-19

VAL BAUMAN @ DAILY MAIL: Stripped Of Its Toxic Rhetoric, Trump’s Plan To Send Asylum Applicants To Cities Where They Would Be Welcomed & Have Access To Opportunities Actually Seems Pretty Rational — That’s Why It’s Unlikely To Happen!

https://www.dailymail.co.uk/news/article-6955263/Trumps-bus-immigrants-sanctuary-cities-actually-HELP-migrants.html

Val writes:

EXCLUSIVE: Trump’s move to bus immigrants to sanctuary cities could actually HELP migrants by putting them in courts where judges are more likely to grant them asylum, experts reveal

Sanctuary cities, counties and states are regions where officials have passed laws to protect immigrants who are in the country illegally – for example by limiting cooperation between ICE and local law enforcement

Trump’s proposal to bus immigrants to sanctuaries could have an unintended effect by relocating migrants to immigration court districts where judges are statistically more likely to grant asylum, experts say

Trump’s idea could backfire because the likelihood of whether an immigrant’s asylum application will be successful varies dramatically depending on the state in which their case is heard, federal data shows

Many sanctuary cities are home to court districts that are statistically more likely to approve asylum claims

For example, New York – a sanctuary city – was the most likely to welcome asylum seekers, with only 34% denied in 2018, while immigration judges in North Carolina and Georgia had a 96% denial rate

By VALERIE BAUMAN SOCIAL AFFAIRS REPORTER FOR DAILYMAIL.COM

PUBLISHED: 14:44 EDT, 24 April 2019 | UPDATED: 18:15 EDT, 24 April 2019

Donald Trump‘s proposal to bus immigrants to sanctuaries could have an unintended effect by relocating migrants to immigration court districts where judges are statistically more likely to grant asylum, according to multiple immigration experts and attorneys.

One major reason Trump’s idea could backfire is that the likelihood of whether an immigrant’s asylum application will be successful varies dramatically depending on the state in which their case is heard – and many of the courts that tend to favor granting asylum are located in sanctuary cities, said former immigration Judge Jeffrey S. Chase.

For example, New York – a sanctuary city – was the most likely to welcome asylum seekers, with only 34 percent denied in 2018, while immigration judges in North Carolina and Georgia had a 96 percent denial rate.

‘It not only gets them to the districts that have better courts and judges, but it gets them to where the pro bono lawyers and (immigration assistance) clinics are,’ Chase told DailyMail.com.

This map, created by the Center for Immigration Studies using ICE data, highlights the locations of sanctuary cities, counties and states around the United States. Yellow markers represent sanctuary counties, while red ones represent cities and green represent states

‘A lot of times when people do bond out they head straight to New York and San Francisco anyway, so they’re saving them the bus ticket,’ he added.

A Department of Homeland Security official declined to comment to DailyMail.com.

Sanctuary cities, counties and states are regions where officials have decided to pass laws that tend to protect immigrants who are in the country illegally.

For example, some sanctuary cities refuse to allow local law enforcement to hand people over to ICE after the immigrants were arrested on minor violations.

They were largely established and gained traction under the Obama administration as local officials sought to assert their own authority on immigration issues.

Trump has proposed busing immigrants to sanctuary cities because he says the mostly Democratic safe havens for migrants should be ‘very happy’ to take in people who have entered the country illegally.

It remains unclear if the White House will go through with the proposal, which the president said the administration was still strongly considering in a series of tweets on April 12.

. . . .

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

Thanks, Val, for your thoughtful analysis. Go on over to the Daily Mail at the link to read Val’s complete article.

One thing the Trumpsters never want to be caught doing is something reasonable that will help the immigration system work the way it is supposed to. That’s why facilitating the assistance asylum seekers need to get fair and timely hearings before fair and impartial U.S. Immigration Judges under a correct interpretation of U.S. asylum law has never been part of this Administration’s equation.

Too bad it isn’t. While perhaps not what “the base” had in mind, a program of working with localities and NGOs to get asylum applicants represented and before fair and impartial Immigration Judges on a timely cycle would certainly be much cheaper and easier to administer than mass detention, wall building, child separation, “Return to Mexico,” and endless crippling backlogs in the Immigration Courts.

Undoubtedly, it would result in more asylum grants. It also would require a much more robust, sensible, and realistic use of prosecutorial discretion (“PD”) by the DHS to “free up” earlier time slots on the Immigration Court dockets without touching off yet another mindless round of “Aimless Docket Reshuffling.”

But, it also should result in fairer, more timely, more humane removals of those who do not qualify for asylum or other protection under our laws as properly interpreted and fairly administered.

To the extent that such removals serve as a “deterrent” to future unqualified arrivals (something I doubt based on the evidence to date, but am willing to see what happens), the Administration would also have empirical evidence supporting at least part of its theory of “control through deterrence.”

A program such as I’ve outlined also could receive bipartisan support from Congress.

Won’t happen, at least under Trump. But, that doesn’t mean that it shouldn’t.

PWS

04-25-19

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