Department of Justice – Page 292 – immigrationcourtside.com

Washington Post: Q&As On Fed Hiring Freeze — Many DOJ Employees (Including Immigration Courts) Might Be Exempt — Employees On Board On 01-22-17 NOT Affected!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/what-does-a-hiring-freeze-mean-for-the-federal-workforce/?hpid=hp_rhp-top-table-main_freeze-pp-1213pm:homepage/story&utm_term=.16a898e72b47

“Are all federal employees affected?

No. The wording of his memorandum exempts “military personnel” and says “the head of any executive department or agency may exempt from the hiring freeze any positions that it deems necessary to meet national security or public safety responsibilities.”

“Military personnel” generally refers to those in uniform, but if Trump also means civilian employees of the Defense Department, that alone would exclude about a third of the workforce.

Exempting public safety could wall off much of other large agencies such as the Justice Department and the Department of Homeland Security. If public safety includes public health workers, more would be excluded.

. . . .

How would a freeze be implemented?

Trump’s order says “no vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances.” The directors of the Office of Management and Budget and the Office of Personnel Management were told to “recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. This order shall expire upon implementation of the OMB plan.” The memorandum also “does not revoke any appointment to Federal service made prior to January 22, 2017.”

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

Looks like understaffed Immigration Courts might be able to continue hiring. But, can’t tell for sure at this point. If somebody out there has more specific information relating to Immigration Court hiring, please let me know.

PWS

01/23/17

Washington Post: As Promised, President Trump Imposes Federal Hiring Freeze — Impact On Immigration Courts Unclear!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/trump-freezes-federal-hiring/?tid=hybrid_collaborative_1_na&utm_term=.ec045f3827e3

“President Trump issued an executive order Monday freezing federal hiring. The hiring freeze excludes national security employees.

A hiring freeze was included in the Trump presidential campaign’s “Contract with the American Voter.” It was the second of six measures “to clean up the corruption and special interest collusion in Washington, D.C.” and part of his “100-day action plan to Make America Great Again.”

The plan excludes the “military, public safety, and public health.”

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

I imagine we will hear shortly from the DOJ/EOIR on how this affects hiring for the U.S. Immigration Courts. Stay tuned.

PWS

01/23/17

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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

How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts! The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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

Interesting juxtaposition here! The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations. The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya. Stay tuned for the results!

Did you know that: The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!

Wow! Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court. I know I sure would. Just think of the hours of preparation spent in preparing to argue well over 100 cases!

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases. So, I know how intensive the preparation process is.

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court. That was as close as I ever got to appearing before the Court.

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts. That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard. Nevertheless, I think the Court got it completely right.

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges. Since then, of course, Dana and I have become judicial colleagues and great friends. I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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

To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”

PWS

01/17/17

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me. It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case? Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control. Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say, “Congress and President Trump will never go for it. Nobody in the Washington ‘power curve’ could sell this idea.” But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle. His name is Jeff Sessions. And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?” Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service. Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights. Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me. I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole. Yes, there will always be a substantial minority of instances where people act against their best interests. Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions. He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views. The former could be a problem for Sessions, however. Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms? Only time will tell. But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan. It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency. Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission. But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.” The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations. Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17

Senator Grassley Asks About BIA Review At Sessions’s Confirmation Hearing

http://immigrationimpact.com/2017/01/12/jeff-sessions-affirms-anti-immigrant-views-confirmation-hearing/

Joshua Briesblatt over at Immigration Impact gives us this interesting nugget from the Sessions Confirmation hearing:

“Lastly, Senator Grassley asked Senator Sessions if he would review all the decisions coming out of the Board of Immigration Appeals (BIA). The Attorney General has the authority to unilaterally revoke decisions of the BIA. Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence. Senator Sessions said that he “does appear” to have that authority and that he has “not thoroughly studied” the issue.”

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

Interesting. Was Chairman Grassley (R-IA) actually trying to suggest that this is something Senator Sessions should undertake as AG? Actually, I think that if and when he gets around to studying it, AG Sessions will find that he does, in fact, have authority to review any BIA decision. But, if he reviewed all of them — that would be about 35,000 per year — I don’t think he’d have much time left over for anything else, including sleeping and eating. Most AG’S review, at most, one or two BIA decisions per year.

Still, it indicates a fundamental due process problem with having the Immigration Courts and the BIA lodged in the Department of Justice. As the chief law enforcement officer and litigator for the U.S., the Attorney General has no business reviewing any BIA decision — it’s a colossal conflict of interest, even by today’s evolving ethics standards. That’s why the Immigration Court System must, at some point, become truly independent which means removing it from the DOJ and establishing it as some type of independent entity — an independent agency or and Article I or Article III Court. Until then, true due process in the Immigration Courts may be elusive.

Notably, notwithstanding lots of recent publicity about the exploding docket and the problems crippling the nation’s Immigration Courts, neither Chairman Grassley nor Senator Sessions seemed to be particularly “up” on the issue or to have much idea of the reality of life in the Immigration Courts. That’s not very encouraging.

PWS

01/13/17

Another BIA Amicus Opportunity — This Time On Marriage Fraud In Visa Petitions — Deadline Feb. 13, 2017

Amicus Invitation No. 17-01-12
AMICUS INVITATION (MARRIAGE FRAUD IN VISA PETITIONS), DUE FEBRUARY 13, 2017

JANUARY 12, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

(1) Is a determination of marriage fraud in a prior visa petition proceeding alone sufficient to deny a subsequent visa petition submitted on behalf of the same beneficiary in a subsequent visa petition proceeding, or is the USCIS District Director obligated to conduct an independent determination as to whether there was a prior fraudulent marriage?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 13, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and

provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

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

Go for it!

PWS

01/12/17

News From The United States Immigration Court In Arlington, VA — Judge Emmett D. Soper Joins Arlington Immigration Court — More Judges Planned For The Future!

Dateline Arlington, VA, Jan. 12, 2017

The United States Immigration Court in Arlington, VA announced recently that newly appointed U.S. Immigration Judge Emmett D. Soper will be starting to hear cases in February. Judge Soper most recently was an Associate General Counsel in the EOIR Office of General Counsel in Falls Church, VA. Before that, he was an Attorney Adviser with the Office of Chief Immigration Judge. If my recollection is correct, he was also a Judicial Law Clerk in the U.S. Immigration Court in Buffalo, NY. Congratulations, Judge Soper! Congratulations Arlington!

Judge Soper is a “good guy,” and should be a great fit in Arlington. He will join Judge John M. Bryant, Judge Robert P. Owens, Judge Lawrence O. Burman, Judge Roxanne C. Hladylowycz, Judge Rodger C. Harris, Judge Thomas G. Snow, Judge Quynh Vu Bain, Judge Traci Hong, and Judge Karen Donoso Stevens, bringing the total number of Judges in Arlington to ten, the largest compliment ever.

Unfortunately, however, because the Arlington Immigration Court currently has only eight courtrooms with public access, Judge Hong and Judge Donoso Stevens have been largely “stashed in the back room” sitting in interior euphemistically named “TV Courts” — which also serve as chambers — hearing cases from other Immigration Courts. I am not aware of what docket Judge Soper will be handling and whether he will be “visible” or “hidden.”

Unless I’m missing something, which is sometimes the case, when all ten Arlington Judges are present, two will always have to be doing interior TV Court to other cities. Additional space has been located at 1901 South Bell, and my understanding is that the Court plans to open new publicly accessible courtrooms, obviously on another floor, this spring, thus enabling all Arlington Judges to work on Arlington cases, something that happened only rarely during my thirteen year tenure there.

The local AILA Chapter has also been informed that the Arlington Immigration Court plans to expand to sixteen Immigration Judges by the end of 2017. This would be a most welcome development, given the current docket with in excess of 30,000 pending cases.

Apparently, the new court design will include publicly accessible courtrooms for 16 Judges with another two interior courtrooms which can be used only for TV Court to other locations. The latter seems rather curious to me. Why take up court space with courtrooms that can’t be used on the Arlington docket? But, hey, I was only an Immigration Judge. What do I know about space and planning?

Obviously, expansion plans will depend on new Attorney General Jeff Sessions and also on whether the U.S. Immigration Courts will be exempt (as they certainly should be, but who knows at present) from the “hiring freeze” that President Trump has promised to impose when he takes office. Maybe somebody at EOIR already knows the answer. But, I haven’t seen any public announcement. Stay tuned.

PWS

01/12/17

“AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY” — Meet A Spectacular Nonprofit Legal & Social Services Organization That “Walks The Walk and Talks The Talk” In The DC Metro Area — Read My Recent Speech Here!

AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY

January 11, 2017

Verizon Building

1300 Eye St., N.W.

Washington, D.C.

Remarks By Retired United States Immigration Judge Paul Wickham Schmidt

Good evening. Thank you Christina,[1] for that wonderful introduction. Thank you, Michael,[2] for extending your hospitality in Verizon’s “state of the art” training center. And, of course, thank you Arleen[3] for inviting me, and for all that you and AYUDA do for our community and for our nation.

Even more important, thanks to all of you here for your continued support and promotion of AYUDA’s essential mission — to help hard-working individuals in our community help themselves, through legal assistance and a variety of educational and social support programs. You are AYUDA, and without your continuing support, encouragement, and active participation there would be no AUYDA and hence no place for those vulnerable individuals to seek assistance. Our community and our nation would be immeasurably poorer if that happened.

By coincidence, I began my professional career in immigration law in 1973, the year AYUDA was founded. On a personal level, and I know that this touches on only one narrow aspect of AYUDA’s ambitious program, I want to thank all of you for the unwavering support, assistance, and consistent professional excellence that AYUDA provided to the U.S. Immigration Court in Arlington, Virginia during my 13-year tenure as a judge, and, of course, continuing on after my retirement.

The sole role of an U.S. Immigration Judge is to provide fair, impartial hearings that fully comply with the Due Process Clause of the United States Constitution to individuals whom the Department of Homeland Security (the “DHS”) has charged with being removable from the United States. Without competent legal representation of the individual before the court, known as a “respondent,” the job of insuring due process can be totally daunting. With dedicated professional groups like AYUDA coming to the defense, my task of conducting fair hearings magically went from “daunting” to “doable.”

Representation makes a real difference in the lives of individuals. Represented individuals succeed in securing relief in Immigration Court at a rate of at least five times greater than those appearing without representation. But, for some of the most vulnerable populations, such as “recently arrived women with children,” bureaucratic lingo to describe actual human beings seeking protection from rampant violence in Central America whose removal has been “prioritized” in Immigration Court, the “success differential” is simply astounding: 14 times!

I am honored tonight to be in the presence of two of the “real heroes – or, more properly, heroines,” of due process at the Arlington Immigration Court: your own “Hall of Famer,” the incomparable Anya Sykes,[4] and your amazingly talented newly appointed — great choice guys –Executive Director, Paula Fitzgerald. Both were “regulars” in my courtroom.

Quite simply, Anya and Paula save lives. Numerous hard working individuals and families in our community, who are contributing at the grass roots level to the greatness of America, owe their very existence to Anya, Paula, and AYUDA.

For example, last year alone, AYUDA helped a remarkable 1,900 individuals resolve more than 3,500 matters in our legal system. And, Immigration Court is just the “tip of the iceberg.” Much of the work was done with the United States Citizenship and Immigration Services, with domestic violence victims in local courts, and through AYUDA’s superstar Social Services and Language Services branches.

I know we all want to get back to main event – eating, drinking, and being merry. So, I’m going to limit myself to one “war story” about my time with Anya and Paula in court.

As some of you probably know, there is a wonderful law enacted some years ago known as “NACARA.” It really could be a model for future laws enabling earned membership in our national community. NACARA has allowed thousands of individuals in our community who decades ago fled violence in Nicaragua, El Salvador, and Guatemala, and have lived law abiding, productive lives here for many years, often in valid Temporary Protected Status, to obtain green cards and get on the track for U.S. citizenship and full participation in the vibrant political life of our community and our country.

The basic NACARA criteria were fairly straightforward, and most individuals were able to have their applications granted at the Asylum Office of the USCIS. But, as with any mass adjudication program, there was group of so-called “dog cases” left over at the end.

Most of those involved individuals who had served or were believed to have served with the Salvadoran military or Civil Patrol during the civil war that raged in the 1980s. If you remember, the U.S. supported the Salvadoran government during that civil war, and some of the individuals who served in the Salvadoran Army actually received training or instruction at military installations in the United States.

At that time, international human rights groups claimed that the Salvadoran government and military were engaging in large scale human rights violations, many directed against innocent civilians, in an effort to suppress guerilla insurgents. Our Government denied, downplayed, or outright ignored most of these claims and refused asylum to almost all Salvadorans on the grounds that no persecution was occurring.

Times change, however, and at some point somebody in our Government actually looked at the evidence and agreed, long after the fact, that the Salvadoran government and military had committed large scale “persecution of others,” even though many of the “others” had been denied asylum in the U.S. based on inability to establish that persecution.

By the time I arrived at the Arlington Immigration Court, the DHS was taking the position that nearly all individuals connected with the Salvadoran military were presumed to be “persecutors,” and therefore should be denied NACARA unless the individual could prove, by credible evidence, that he or she did not, in fact, engage in persecution decades earlier during the civil war. These cases were routinely declined at the Asylum Office and “referred” to our court for re-adjudication.

As you might imagine, such cases are extremely complicated, requiring the individual not only to have detailed knowledge of the structure and activities of the Salvadoran military during the civil war but also specific knowledge of what individual units and soldiers were doing at particular times, places, and dates, and to be able to coherently account for and corroborate their own activities at those times.

Most of those “referred” were hard working, tax paying, law-abiding individuals who had lived in the U.S. for decades, and supported their families, but did not have the necessary funds to pay for good lawyers familiar with, and willing to handle, this type of sophisticated case. The chance of an individual being able to successfully present his or her own case was approximately “zero.” Most were completely bewildered as to why service with the U.S.-supported government of El Salvador, once considered a “good” thing, was now a “bad thing,” requiring mandatory denial of their NACARA applications.

This is where talented NGO lawyers like Paula and Anya stepped in. With their help and legal expertise, notwithstanding the passage of decades, individuals were able to document, corroborate, and testify convincingly about their “non-persecutory” activities during the civil war. I recollect that every such NACARA case handled by AYUDA before me eventually was granted, most without appeal or with the actual concurrence of the DHS Assistant Chief Counsel.

As a direct consequence, hard working, productive, law-abiding, tax-paying individuals remained in the community, continued to support their families, and, with green cards in hand, could now find better work opportunities and get on the path to eventual U.S. citizenship and full participation in our national community. This is “Lifesaving 101” in action, and Anya, Paula, and AYUDA are the “lifesavers.” If there were an “Arlington Immigration Court Hall of Fame,” they would certainly be in it. In addition to their outstanding services to AYUDA’s clients, Anya and Paula are inspiring mentors and role models for lawyers just entering the field.

In closing, I’ve always tried to keep five important values in front of me: fairness, scholarship, timeliness, respect, and teamwork. Dedicated individuals like Anya and Paula, and great organizations like AYUDA, embody these important values.

And, beyond that, these are your values. Your investment in AYUDA and its critical mission is an investment in social justice and the values that have made our country great and will continue to do so into the future.

Thanks for coming, thanks for listening, and, most of all, thanks for your investment in AYUDA and turning your values into effective action that saves lives, builds futures, and insures the continuing greatness of America.

[1] Christina M. Wilkes, Esquire, Partner, Grossman Law Firm, LLC – Chair, AYUDA Board of Directors.

[2] Michael Woods, Esquire, Vice President and Associate General Counsel, Verizon — Director, AYUDA Board of Directors.

[3] Arleen Ramirez Borysiewicz, Director of Program Initiatives, AYUDA.

[4] Unfortunately, Anya was unable to attend. But, almost everyone in the room was mouthing “Anya” when I said the word “heroine” so I realized that she was “there is spirit” and proceeded accordingly. Anya Sykes was inducted into the AYUDA Hall of Fame in 2013.

Senator Cory Booker Is Skeptical That Jeff Sessions Will “Seek Justice For All” As AG!

https://www.washingtonpost.com/world/national-security/jeff-sessions-has-made-his-case-to-be-the-attorney-general-now-the-senate-will-hear-from-supporters-and-detractors/2017/01/10/5683ce24-d796-11e6-9a36-1d296534b31e_story.html?hpid=hp_rhp-top-table-main_sessions-1225p%3Ahomepage%2Fstory&utm_term=.60a27c7babe2

In an unprecedented move, Senator Cory Booker (D-NJ) became the first U.S. Senator ever to testify against a colleague during a confirmation hearing. In the above account from the Washington Post, Senator Booker charged that:

“If confirmed, Sen. Sessions will be required to pursue justice for women, but his record indicates that he won’t,” Booker said. “He will be expected to defend the equal rights of gay and lesbian and transgender Americans, but his record indicates that he won’t. He will be expected to defend voting rights, but his record indicates that he won’t. He will be expected to defend the rights of immigrants and affirm their human dignity, but the record indicates that he won’t.”

The Senate Judiciary Committee also heard testimony from a number of Sessions’s supporters, including former Attorney General Michael Mukasey, who said, according to the Post:

“Sessions is “thoroughly dedicated to the rule of law and the mission of the [Justice] department.”

The Post also reported that the Committee heard testimony from Oscar Vasquez, a former undocumented individual, who expressed the fear of many so-called “Dreamers” that as Attorney General Sessions will support the revocation of their protected status and use the information that they voluntarily furnished to the USCIS to institute removal proceedings.

During yesterday’s hearing, Senator Sessions took a somewhat ambiguous position on Dreamers. He indicated he would have no problem if President Trump decided to revoke the Executive Order establishing the DACA program, while at the same time acknowledging that there was no plan in the offing to actually place Dreamers into removal proceedings.

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

Notwithstanding Senator Booker’s reservations, and those of many others in the civil rights, human rights, women’s rights, and immigrants’ rights communities, Senator Sessions will be the next Attorney General. At best, therefore, Senator Booker’s testimony was a “marker” in the event that once confirmed, Senator Sessions abandons his promise to seek justice for all Americans (which includes lawfully resident immigrants and undocumented individuals residing in the United States) and returns to the much narrower view of civil rights, human rights, women’s rights, and immigrants’ rights that he has often expressed and defended during his long Senate career.

It’s a tall order for Senator Sessions to rise above the limitations of his past and take a broader, more inclusive, more humane view of the U.S. legal system. But, for the sake of all Americans, I sincerely hope he can pull it off.

PWS

01/11/17

Sessions Gives Few Specifics About Immigration Role During First Day of Hearings — Offers Neither Support Nor Solution For Dreamers, But Doesn’t Consider Them Removal Priorities — Defends Hard Line Positions, But Says He Would Like To Work Together On Solving Difficult Problem In Compassionate Manner

http://www.huffingtonpost.com/entry/jeff-sessions-dick-durbin-immigration_us_58751aa5e4b02b5f858b5c4a

“The attorney general is not in charge of most deportation efforts ― that falls to the Department of Homeland Security. But should he be confirmed, Sessions would still have plenty of power to affect immigration matters, from shaping the resources immigration courts receive and how they make decisions to pressuring local law enforcement to assist in deportation efforts.

Sessions said that Durbin was “wrong” about what his record indicates he’d do as attorney general, but he also defended his support of limiting immigration and increasing deportations.

“I believe the American people spoke clearly in this election,” Sessions said. “I believe they agreed with my basic view and I think it’s a good view, a decent view, a solid legal view for the United States of America that we create a lawful system of immigration that allows people to apply to this country and if they’re accepted, they get in; if they’re not accepted, they don’t get in.”

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

Senator Sessions seemed neither sympathetic to, nor understanding of, the difficult situation of “Dreamers.” On the plus side, he seemed to recognize that the Dreamers, and similarly situated individuals who have successfully integrated into the community of the United States, probably aren’t going anywhere, but offered no specific suggestions as to how they should be treated if DACA is withdrawn.

I was somewhat encouraged by the Senator’s recognition of the complexity of the immigration issue — something many enforcement-oriented individuals refuse to acknowledge — the need to work together to solve problems, ideally through legislation, and his use of the term “compassionate.” He also seems to appreciate that being the Attorney General of the United States is a markedly different role than representing Alabama in the Senate — it’s a bigger picture with a much border, more diverse constituency.

As far as I can tell from reading press accounts, Senator Sessions was neither asked about nor did he reveal his plans for what is probably going to be his biggest problem when he assumes the leadership of the Department of Justice — the total meltdown of the U.S. Immigration Court System.

PWS

01-11-17

Attention Advocates: Another Chance To Change The Course Of the Law — BIA Requests Amicus Briefs On “Material Support Bar!”

Amicus Invitation No. 17-01-09
AMICUS INVITATION (MATERIAL SUPPORT BAR), DUE FEBRUARY 8, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

(1) Does the word “material” in section 212(a)(3)(B)(iv)(VI) of the Immigration and nationality Act have an independent meaning, or is the phrase a term of art in which “material” has no independent meaning?
(2) Assuming there is a de minimis exception to the material support bar, does that exception apply to contributions of money?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-09. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-09. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information is not available in this case.
Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 8, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

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

The deadline is February 8, 2017 and the above posting contains complete instructions on how to file.

Kudos to the BIA for seeking public input on these important issues!

PWS

01/10/17

Post Editorial Slams Total Due Process Meltdown In U.S. Immigration Courts! Why We Need An Independent Article I Immigration Court — Now!

https://www.washingtonpost.com/opinions/americas-immigration-courts-are-a-diorama-of-dysfunction/2017/01/09/38c59cf6-ceda-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.2597096ea1d8

“The nation’s 58 immigration courts, administered not by the judiciary but by the Justice Department, are places of Dickensian impenetrability, operating under comically antiquated conditions. Case files are scarcely digitized. Clerks are outmatched by mountains of paper files. Translators struggle to convey evidence and legal concepts across linguistic and cultural barriers.
Disgracefully, wild disparities in outcomes and legal standards characterize the various courts, meaning that asylum seekers who appear before immigration judges in Atlanta face almost impossibly long odds and are generally ordered deported, while those in New York are usually granted relief and allowed to remain in the country.

In these courts, the idea of justice itself is so degraded, and the burnout rate so high, that some immigration lawyers have simply thrown in the towel. One of them, movingly profiled by The Post’s Chico Harlan, got sick of the charade and finally quit. “I genuinely believed these people could die if they’re sent back” to their home countries, said Elizabeth Matherne, who once represented asylum seekers. “And you’re talking to somebody” — the judge — “who is not listening.”

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

Why We Need An Independent Article I Immigration Court — Now!

By Paul Wickham Schmidt

Not a pretty picture of Due Process in America, especially for a Court System whose noble, but forgotten, “Vision” is supposed to be “though teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

Undoubtedly, this downward spiral into judicial dysfunction started with the politically-motivated manipulation of the Immigration Courts and the selection system for Immigration Judges and Board of Immigration Appeals Members during the Bush Administration.

But, the Obama Administration had eight years to clean up this mess. Not only has it failed to act, but in some ways has made it even worse. Even in the disastrous Bush years, the backlog of pending cases never approached today’s level of more than 530,000, and it’s growing every day.

The Justice Department has no plausible plan for dealing with this morass, which directly affects the lives and futures of millions of “real people.” Nor is there even a rudimentary plan in place to implement an e-filing system — a staple of virtually every other Federal Court System. Under the Department of Justice, the Executive Office for Immigration Review (“EOIR”), which is charged with administering the Immigration Courts, began “studying” the process for e-filing more than 15 years ago — so far, without achieving any visible success.

Yes, Congress has failed to pass practical, badly needed reforms of the immigration system, unnecessarily compounding the Immigration Courts’ burdens. And, yes, the Congressional approach to appropriating needed resources for the Immigration Courts has been inconsistent and all too often has lagged far beyond funding for immigration enforcement.

But, for the most part, the Immigration Courts are the responsibility of the Executive Branch and the Justice Department. The structure, supervision, and operation of the Immigration Courts is almost entirely a matter of Justice Department regulations. Judicial selections do not have to go through the cumbersome Senate confirmation process.

The Justice Department has shown neither enthusiasm nor the ability to promptly fill existing judicial vacancies through a transparent merit selection system, nor has sufficient attention been paid to locating the necessary courtroom space or planning for painfully obvious expansion needs. Even if all the existing judicial vacancies were filled, as of today there is no place to put the extra Immigration Judges. Effective judicial administration, never a point of expertise for the Justice Department, has completely disintegrated over the past decade and one-half under Administrations of both parties and a succession of Attorneys General who simply failed in their duty to run a fair, efficient, highly professional Immigration Court system.

We have not yet seen the Trump Administration’s and Attorney General Sessions’s plans for how to restore justice to the Immigration Court system. But, the preliminary rhetoric isn’t encouraging — lots of tough talk about immigration enforcement, but neither acknowledgement of nor emphasis on the accompanying equally important need for achieving and protecting due process in the Immigration Courts.

After more than three decades in the Justice Department, the Immigration Courts have not developed in a way that fulfills their essential role in insuring fairness and guaranteeing due process in the removal hearing process. Waiting for the Justice Department to appropriately reform the system is like “Waiting for Godot.” It’s more than time for bipartisan action in Congress to remove the Immigration Courts from the Department of Justice and create an independent, well-functioning Article I Immigration Court. Only then, will the Immigration Courts be able to achieve their “noble vision” of “through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.”

PWS

01/10/17

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts: