Executive Office for Immigration Review (“EOIR’) – Page 161

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

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

Judge Marks writes:

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

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

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

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

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

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

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

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

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

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

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

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

PWS

07-19-17

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

Subject: Immigration Court Dispositions Drop 9.3 Percent Under Trump

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

FOR IMMEDIATE RELEASE

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

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

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

To read the full report, please go to:

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

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

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

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

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

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

http://facebook.com/tracreports

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

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

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

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

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

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

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

PWS

07-18-17

TRUMP ADMINISTRATION’S WAR ON AMERICA — Proposals To Restrict Student Visas & Reduce Legal Immigration Will Hurt Economy, National Standing

These articles from today’s Washington Post highlight three “gonzo” immigration proposals driven by the Trump Administration’s white nationalist agenda.

First, the proposal to require nonimmigrant students in the U.S. to apply for annual extensions of stay would roll back the “duration of status program” for students — arguably the single best and most mutually beneficial efficiency move in the history of INS/USCIS. It would also create chaos in student visa programs that not only keep many colleges and universities financially viable, but also fuel American innovation and technological advances in the STEM fields.

Second, proposals to make visa issuance a law enforcement function within the DHS would lead to chaos in the visa issuing program and probably will result in retaliation by other friendly nations. Visas are part of the foreign commerce of the U.S., not a domestic law enforcement program.

Finally, proposals to reduce legal immigration and further restrict legal opportunities for unskilled workers would deprive the U.S. of workers at a time when the growing economy needs them the most. This short-sighted policy would likely lead to the same type of economic stagnation that has plagued EU countries and Japan over the past several decades.

Read the articles here:

https://www.washingtonpost.com/opinions/the-latest-nativist-trump-proposals-would-actually-hurt-american-institutions/2017/07/17/c85765fc-67eb-11e7-8eb5-cbccc2e7bfbf_story.html?utm_term=.570c8e41fee6

https://www.washingtonpost.com/news/wonk/wp/2017/07/17/cutting-legal-immigration-50-percent-might-be-trumps-worst-economic-policy-yet/?utm_term=.ac7808d8383d

Restrictionist policies driven by xenophobia and racism inevitably lead to disaster.

PWS

07-18-17

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

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

Jeffrey writes:

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

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

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

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

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

Why the “Chevron Doctrine” has gotta go:

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

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

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

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

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

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

PWS

07-17-17

JUDGES JOURNAL, SUMMER 2017: “IN BORROWED ROBES — A Day in the Life of an IMMIGRATION JUDGE” By Judge Dorothy A. Harbeck

JJ_SUM17_56_3_Harbeck

Excerpt:

“It was a Sunday afternoon of particular autumn splendor when I found myself trying on vampire capes for work. I had been three-quarters of the way to the York County Correctional Facility in Pennsylvania, a detention center, for my week-long detail of hearing removal cases of noncitizens when I realized I had forgotten my judicial robe. I was supposed to be on the bench in the immigration court the next morning. I was a new immigration judge (IJ), assigned to a detention facility in Eliz- abeth, New Jersey, and I did not want any problems on my detail to York. I gured forgetting my robe was a rookie move, and I wanted to project authority. Also, there is a specific Operating Policy and Procedure Memorandum (OPPM) on the subject. That OPPM requires that I wear a robe when presiding over cases so that I convey the proper dignity of the court and foster the aims of due process and a fair hearing.”

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Read the entire, wonderful first-hand account of a trial judge’s life at the “retail level” of our immigration system by my good friend Judge Dorothy Harbeck of the Elizabeth, N.J. Immigrant Court.

PWS

07-17-17

11th Circuit Zaps BIA’s Overbroad Interpretation Of “Prison” — Alfaro v. Attorney General — “Rebel-controlled trailer in a jungle is not a ‘prison.'”

http://media.ca11.uscourts.gov/opinions/pub/files/201414913.pdf

Key Quote:

“The BIA’s determination that Alfaro was confined to a prison is erroneous. The status adjustment application asked whether Alfaro had ever been confined in a prison, and we cannot conclude as a matter of law that a rebel-controlled trailer in the middle of the Nicaraguan jungle is a “prison.” In ordinary usage, a prison is a “building or complex where people are kept in long-term confinement as punishment for a crime . . . specif[ically], a state or federal facility of confinement for convicted criminals.” Black’s Law Dictionary (10th ed. 2014). Both the definition and the plain meaning of the word suggest that legal authority to confine someone is a necessary component. That is to say, a prison is an instrumentality of the state, and it is the state’s legal authority to confine someone that distinguishes confinement in a prison from confinement by one without legal authority to do so, say a kidnapper, for instance. 3

In arguing that Alfaro’s confinement constitutes confinement in a “prison,” both the government and the BIA liken the trailer to a military prison because Alfaro was placed there involuntarily, during wartime, following a war-related incident. But Alfaro was not confined in a prison, he was confined in a small

3 Even assuming that Alfaro did previously say that he was in “jail,” whether Alfaro was confined to a prison is a question of law determined by the definition of the word “prison.”

Case: 14-14913 Date Filed: 07/13/2017 Page: 7 of 7

trailer, in a jungle, by a group of his peers—the Contras—fellow rebels fighting to overthrow their government. It was nothing like a military prison. The Contras were not military personnel, they were insurgents, and they were not acting under any governmental or legal authority to detain him. The Contras did not charge or convict Alfaro of any crime because they lacked the authority to do so. Indeed, it is not even clear whether Alfaro was being punished or whether he was just being questioned pending an inquiry into the incident. Regardless, we hold that as a matter of law, a rebel-controlled trailer in a jungle is not a “prison.”

PANEL: TJOFLAT and WILSON, Circuit Judges, and ROBRENO, District Judge.

OPINION BY: Judge Wilson

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

Even relatively “pro-Government” Circuits like the 11th appear to be getting weary of the BIA’s attempts to expand the reach of removal statutes.

PWS

07-16-17

House Appropriations Adds 65 New U.S. Immigration Judge Positions!

According to Congressional Quarterly, on July 14, 2017, the House Appropriations committee voted to add 65 new U.S. Immigration Judge positions to the DOJ’s FY 2018 spending bill.

PWS

07-16-17

Administration Mulls Expansion Of Expedited Removal

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

The Washington Post reports:

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

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

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

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

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

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

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

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

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Read the complete article at the link.

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

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

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

PWS

07-14-17

11th Cir. — BIA GETS IT WRONG AGAIN ON MODIFIED CATEGORICAL APPROACH & AGFEL — GORDON V. ATTORNEY GENERAL

http://media.ca11.uscourts.gov/opinions/pub/files/201513846.pdf

Key quote:

“Further, the Board’s conclusion that the crime was an aggravated felony because the sale or delivery was “for monetary consideration” is meritless. That the sale or delivery was “for monetary consideration” does nothing to assist us in determining “which of a statute’s alternative elements”—sale or delivery— “formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. The Supreme Court has made clear time and time again that “[a]n alien’s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. As the Board did not appropriately determine that Gordon was convicted of an aggravated felony, we grant Gordon’s petition and reject the Board’s finding of removability.”

PANEL: Circuit,Judges Tjoflat, Wilson; District Judge Robreno

INION BY: Judge Tjoflat

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So, why does an “expert tribunal” like the BIA keep getting this fairly basic stuff wrong? And, why has the DOJ eliminated EOIR training?

PWS

07-13-17

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

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

Key quote:

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

No. 16‐3941 27

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

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

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

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

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

OPINION BY: Judge Hamilton

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

PWS

07-13-17

NEW SUIT IN CAL. ALLEGES THAT DHS FLOUTS ASYLUM LAW AT BORDER!

https://www.buzzfeed.com/adolfoflores/us-officials-accused-of-intimidating-asylum-seekers?utm_te

Adolfo Flores writes in BuzzFeed News:

“Border agents are systematically intimidating and turning away asylum seekers at the US–Mexico border, a lawsuit filed on Wednesday alleges.

The federal class-action lawsuit filed in US District Court in California by immigrant rights groups alleges that US Customs and Border Protection agents have told migrants that “Donald Trump just signed new laws saying there is no asylum for anyone.” They have also allegedly coerced asylum seekers into signing forms abandoning their claims by threatening to take their children away.

“CBP’s illegal conduct is occurring as a humanitarian crisis drives vulnerable people experiencing persecution in their home countries to seek refugee protection in the United States,” the complaint states.

CBP said in a statement that it does not comment on pending litigation.

One of the plaintiffs, identified as Abigail Doe in the complaint, is a Mexican native with two children under the age of 10. She attempted to flee Mexico after the cartels threatened to kill her family.

She arrived in Tijuana with her two kids and approached border agents at the San Ysidro point of entry. The lawsuit states CBP agents coerced her into recanting her fear of staying in Mexico and signing a form withdrawing her application for admission to the US.

Abigail Doe and other women in the lawsuit said they were told by agents that if they continued to pursue their asylum claims they would be separated from their children.

“As a result of this coercion, the form falsely states that [Abigail Doe] and her children were unable to access the asylum process and were forced to return to Tijuana, where they remain in fear for their lives,” the lawsuit states.

Another woman, identified as Dinora Doe from Honduras, presented herself to US border authorities after her and her 18-year-old daughter were threatened and repeatedly raped by MS-13 gang members. The complaint accuses CBP officials of misinforming Dinora Doe of her rights under US law, and denying her the chance to apply for asylum.

The lawsuit also names Al Otro Lado, a legal aid organization that helps migrants on both sides of the border, as a plaintiff because it has allegedly been forced to divert significant resources to counteract CBP’s actions.”

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The article with a copy of the plaintiffs’ filing is at the link.

While the Trump Administration often disingenuously pontificates about the “rule of law,” in fact, they appear to have little concern for the Constitution, the Immigration and Nationality Act, International Treaties and Conventions, and a host of other legal requirements.

PWS

07-12-17

“STOPPING IMMIGRATION SERVICES SCAMS” — A New Tool For Advocates And Lawmakers!

Prepared by the Catholic Legal Immigration Network, Inc. (“CLINIC”) and The Washington College of Law at American University. Here it is:

Stopping-Immigration-Services-Scams-A-Tool-for-Advocates-and-Lawmakers

PWS

07-12-17

ANOTHER SETBACK FOR TRUMP ADMINISTRATION AS U.S. JUDGE IN DETROIT BLOCKS IRAQI DEPORTATIONS!

https://patch.com/michigan/detroit/u-s-iraqi-deportation-hold-until-court-review-detroit-judge

AP reports:

“DETROIT, MI — A federal judge Tuesday halted the deportation of 1,400 Iraqi nationals, including many Christians fearing persecution, while courts review the orders to remove them from the U.S. Judge Mark Goldsmith issued a 24-page opinion asserting jurisdiction in the case over the objection of the Justice Department, which argued U.S. district judges do not have jurisdiction.

“This Court concludes that to enforce the Congressional mandate that district courts lack jurisdiction — despite the compelling context of this case — would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court,” Goldsmith wrote in a 24-page opinion.

Goldsmith earlier blocked the deportations while he considered whether he had jurisdiction over the case. (For more local news, click here to sign up for real-time news alerts and newsletters from Detroit Patch, click here to find your local Michigan Patch. Also, like us on Facebook, and if you have an iPhone, click here to get the free Patch iPhone app.)

Many of the Iraqis, including 114 rounded up in the Detroit area last month who are mostly Christians, fear attacks over their religion if returned to Iraq. The government says they face deportation because they committed crimes in the U.S.

Goldsmith earlier extended a ruling suspending the deportation of the 114 while he considered jurisdiction to all Iraqi nationals in the U.S.

Trump Jr.’s ‘Nothing’; Iraqis Can Stay; Hotel Hack: Patch Morning Briefing

Also: sharing streaming passwords, a violent riptide, and a teen dies using her cellphone in the bath.

The U.S. government said 1,400 Iraqis are under deportation orders nationwide, though most are not in custody. Some have been under orders for years because they committed crimes in the U.S. But legal action over deportations took on new urgency because Iraq has agreed to accept them.

The American Civil Liberties Union said a suspension is necessary so Iraqi nationals can go to immigration court and argue that their lives would be in jeopardy if returned to their native country. Without some intervention, the ACLU contends that people could be deported before their case is called.

Goldsmith scheduled a Wednesday hearing to discuss several matters in the case, including a request from the Iraqis for a preliminary injunction barring the deportations.”

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

Seems like these folks should have their cases reviewed by a U.S. Immigration Judge based on current conditions in Iraq.

PWS

07-12-17

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

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

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

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

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

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

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

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

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Read the complete article at the link.

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

PWS

0712-17

REVEAL: DUE PROCESS OUTRAGE — DHS MOVES TO DEPORT VULNERABLE CHILDREN WHO HAVE BEEN APPROVED FOR GREEN CARDS — FEDERAL COURTS NEED TO STEP UP TO THE PLATE AND END THE MISUSE OF EXPEDITED REMOVAL BY DHS!

https://www.revealnews.org/article/a-judge-said-these-kids-get-a-green-card-ice-says-they-get-deported/

Bernice Yeung writes in Reveal:

. . . .

“A Pennsylvania judge and the U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security, have decided that V.G. deserves to stay in the United States.

But another arm of department, Immigration and Customs Enforcement, says he must go. And, under what’s known as “expedited removal,” immigration officials can skip the traditional removal process in front of immigration judges.

Instead, officials are given wide latitude to deport migrants under expedited removal, if those migrants are captured within 100 miles of the U.S. border, have been in the country for less than two weeks and don’t have valid travel documents.

Under this deportation regime, the U.S. government has freedom to deport migrants like V.G. and his mother – who were found soon after they crossed the border without immigration papers – with little due process and limited ways for migrants to contest the order.

President Barack Obama made wide use of the policy, and President Donald Trump favors expanding it further.

Created in 1996, the expedited removal policy has been controversial since the start. Those who seek to tighten the borders laud the policy for its efficiency and for promoting deterrence. But immigrant and asylum advocates say that it lacks checks and balances and gives too much discretion to border patrol agents.

But it’s a policy susceptible to errors without a meaningful process to correct them.

Once an immigration official has placed a migrant into expedited removal, there are few ways to contest it. People who can show they are authorized to live in the country are able to challenge expedited removal in federal court. Asylum-seekers also have a chance to make a case that they have a fear of returning to their home countries, but they cannot appeal an unfavorable decision.

Everyone else is returned to their home countries as quickly as possible. They are then barred from returning to the United States for five years.

The U.S. Commission on International Religious Freedom, which has observed expedited removal proceedings since 2005, has found “serious flaws placing asylum seekers at risk of return to countries where they could face persecution.” The ACLU has also documented a case of an asylum-seeker who was quickly deported, only to be raped after she was sent back across the southern border.

Multiple U.S. citizens have been accidentally deported through expedited removal. Foreign workers and tourists with valid visas have also been turned away, prompting a judge to write in a 2010 decision that the expedited removal process is “fraught with risk of arbitrary, mistaken, or discriminatory behavior.”

Nonetheless, various courts across the country have agreed that the law is clear: The courts cannot intercede in expedited removal cases, even if there’s a reason to believe the outcome was unjust.

This has put kids like V.G. in legal limbo, stuck between two competing government mandates. They have a special status to stay in the United States. At the same time, the Department of Homeland Security says it has the authority to deport them.

Immigration officials declined to comment on pending litigation. But in court documents filed in V.G.’s case, the government says the children’s deportation orders are final and their special status doesn’t change things, especially since they have not yet received their green cards.

V.G.’s attorneys argue, among other things, that a federal court has previously required the government to revisit the deportation orders of children once they’re granted the humanitarian status.

That requirement, they say, also extends to expedited removal cases.”

. . . .

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

In addition to being bad policy, this clearly isn’t due process! It’s time for Federal Judges get out of the ivory tower and start enforcing the requirements of our Constitution! Assuming that recent arrivals apprehended at the border with no claim to stay in the U.S. might not get full judicial review (a proposition that I question), these kids are different, having been approved for green cards and merely waiting in line of a number to become available in the near future. In the past, the policy of the DHS has invariably been to allow such individuals to remain in the U.s. pending availability of a visa number — even when that process might take years.

Thanks much to Nolan Rappaport for spotting this item and forwarding it to me!

PWS

07-10-17

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