“NAG” (NEW AMERICAN GULAG) – Page 50

U.S. IMMIGRATION JUDGE JONATHEN SCOTT SIMPSON EXPRESSES FRUSTRATION WITH FECKLESS “COURT” SYSTEM THAT KOWTOWS TO DHS ENFORCEMENT’S “STAY IN MEXICO PROGRAM” — DOJ’s “Captive Courts” Expected To Assist DHS In Misusing Asylum Laws To Discourage & Punish Asylum Seekers”

https://www.cnn.com/2019/03/20/politics/asylum-return-to-mexico-hearing-migrant-protection-protocols/index.html

Priscilla Alvarez reports for CNN:

San Diego (CNN)Twelve asylum seekers required to stay in Mexico for the duration of their immigration hearings presented themselves one by one before an immigration judge over nearly four hours Wednesday. Each case appeared to raise a similar set of questions about the new policy for Judge Jonathen Scott Simpson, and the hearing culminated in a dose of skepticism from the judge.

“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.

RELATED: Homeland Security expands program of returning migrants to Mexico to await hearings

The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.

The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.

As of March 12, the US had returned 240 migrants to Mexico under these protocols.

The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.

The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.

Border Patrol facility over capacity as government struggles to keep pace in the Rio Grande Valley

In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.

“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”

“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”

All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.

In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.

Senate panel approves Trump’s nominee to lead ICE

Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.

“Immigration officers need four hours,” said Robert Wities, an ICE attorney.

“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.

In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.

In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.

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Can you imagine what would happen if the ICE Assistant Chief Counsel Robert Wities told a U.S. District Judge when he or she could or couldn’t schedule hearings? What if a private attorney said he or she would only appear in the afternoon? What kind of “court system” doesn’t give its own judges flexibility to set their own court schedules in the manner they believe will be most fair, effective, and efficient? Why has the statutory contempt of court authority that Congress conferred on U.S. Immigration Judges more than two decades ago never been implemented by the DOJ?

A real court would examine both the legality and the procedures that the DHS unilaterally, and apparently incompetently, put in place for their “Stay in Mexico” program. Deputy AG Rod Rosenstein’s rewriting of the oath of office notwithstanding, U.S. Immigration Judges, like other Federal employees, swear an oath to uphold our Constitution (e.g., Due Process) not an oath of loyalty to the Attorney General, the President, or the DOJ.

PWS

03-24-19

Amín E. Fernández @ NY Law School: A FIRST-HAND ACCOUNT FROM THE BORDER — “As I would inform families of the future that awaited them, I felt embarrassed of my country. I felt anger at the fact that we are telling folks who are fleeing cartel, gang and military violence to grab a number and wait in line for four to five weeks. That I had to help mothers and fathers write their information on their babies in case they were separated. It broke my heart to have to tell a mother that her pain and suffering just couldn’t be pigeon holed into ‘race, religion, nationality, political opinion or a particular social group.'”

Amín E. Fernández

            Prior to this year, I had never been on a college spring break trip. I had never experienced the stereotypical American “Cancun trip” full of debauchery, innocentfun and the fantasy MTV sold me in the early 2000s. Part of this was due to financial considerations, the other part was that I always had some kind of commitment whenever this season came upon me. This year, I finally got to go on a spring break trip with some of my law school peers. But the Mexico I saw was far from a carefree oasis for the inebriated and the carefree.

            This past March, I along with my Asylum clinic professor and four New York Law School classmates volunteered in Tijuana for a week at an organization called Al Otro Lado, Spanish for “On the Other Side.” Al Otro Lado (“or AOL”) is a not for profit organization run almost exclusively by volunteers. AOL provides free legal and medical services to migrants both in Tijuana and San Diego and is currently in the process of suing the U.S. government for its recently adopted border policies. AOL is composed of volunteers from all walks of life. Some are attorneys, others doctors or nurse practitioners. Most, though, are concerned U.S. citizens who wanted to see for themselves the humanitarian crisis occurring in our country. They come from all walks of life, ages, races and socioeconomic backgrounds. But for that week, our collective problems and biases were set aside due to the more pressing concerns facing the people we were seeking to assist.

            During my week volunteering with AOL in Tijuana, my classmates and I utilized our studies in immigration and asylum law to educate asylum seekers as to the process that awaits them. I met with over a dozen migrants, one-on-one, and heard their stories of plight and fear. I didn’t tell them what to say, instead I explained to them that asylum is a narrowly applied form of relief. That in order to be granted asylum in the U.S. that they had to essentially prove 1. They have suffered a harm or credible fear of harm. 2. This fear or harm is based on an immutable trait (such as race, religion, nationality, political opinion or membership to a particular social group) 3. They cannot relocate to another area of their country because their government either cannot or refuses to help them. 4. They tried to go to the police or couldn’t due to inefficacy or corruption. Many of the folks I spoke with had no idea what asylum was or what exactly were its requirements. At times, I would find out that the family I was speaking to was crossing that same day meaning that I had 5 minutes to explain to them what a “credible fear interview” was.

            My favorite part of my week though, was when I got to conduct the Charla slang for “a talk.” The Charla is a know your rights workshop where AOL explains the asylum procedure, the illegal “list” number system currently being conducted by the U.S. and Mexican government, and what possibilities await them after their credible fear interviews. Currently, if you arrive in Tijuana and want to plead for asylum in the U.S. you can’t just go and present yourself to U.S. Customs and Border Protection officials. The Mexican government has security keeping you from being able to speak to U.S. CBP. Mexican officials, though, do not want to take on this responsibility either, so the idea somehow came about of having the migrants themselves keep a list or a queue amongst themselves. The way it works is that every morning at El Chaparral, one of the ports of entry between Tijuana and San Diego, a table with a composition notebook is set up. In that notebook is a list usually somewhere in the several thousands. For each number, up to ten people can be listed and in order to sign up and receive a number you have to show some form of identification. Once you have a number, the average wait time is about 4-5 weeks. Sometimes families and people disappear as their persecutors come to Tijuana and seek them out. Every morning at El ChaparralI would see families lined up either to receive a number or to hopefully hear their number be called. Best of all, right next to the migrants who would be managing “the list” would be Grupo Betas, a Mexican “humanitarian” agency who aids in the siphoning of migrants to the U.S.

            If and when your number is called, you’re shuttled off to U.S. CBP officials who will likely put you inLa Hieleras or “The Iceboxes.” Migrants named them as such because they are purposely cold rooms where migrants are kept for days or weeks until their credible fear interviews. Here, families can be separated either due to gender or for no reason given at all. Migrants who had been to La Hieleras would tell me that they were given those aluminum-like, thermal blankets marathon runners often get. They state how they are stripped down to their layer of clothing closest to the skin and crammed into a jail like cell with no windows and lights perpetually on. After La Hieleras, a U.S. immigration official will conduct a credible fear interview. The purpose of this interview is for the U.S. to see if this permission has a credible asylum claim. If you fail this interview your chances of being granted asylum become slim to none. If you pass three possibilities await you. First, you might be released to someone in the U.S. who can sponsor you, so long as that person has legal status and can afford to pay for your transport. The second, and newest, is that you might be rereleased and told to wait for your court date in Tijuana. And the last is indefinite detention somewhere within the U.S.

            As I would inform families of the future that awaited them, I felt embarrassed of my country. I felt anger at the fact that we are telling folks who are fleeing cartel, gang and military violence to grab a number and wait in line for four to five weeks. That I had to help mothers and fathers write their information on their babies in case they were separated. It broke my heart to have to tell a mother that her pain and suffering just couldn’t be pigeon holed into “race, religion, nationality, political opinion or a particular social group.” Thank you, try again. I feel like after this trip I have more questions than answers. That the work volunteer work I was doing was more triage than anything else. That even if I graduate law school and become an attorney at most I would be putting a band aid on a gunshot wound and never really addressing the disease.

            It’s easy to feel defeated. It’s much more difficult to work towards a solution. I’m not an expert on any of these subjects. But I know that xenophobia and racism have no place in international police or immigration practices. I know that the folks I encountered during my time at the border were families fleeing not criminals scheming. I know that I may not have all the solutions but we should begin by instilling empathy, humanity and altruism into how we speak of asylum seekers and immigrants in general. That not much separates me, an American citizen, from the people I met in Tijuana. I may not have the answers to the turmoil I saw at the border but I’m determined to giving the rest of my life to figuring it out.

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

Thanks, Amín!

He is one of the students of NY Law School Clinical Professor Claire Thomas who went to the border to “fight for the New Due Process Army” following the Asylum and Immigration Law Conference at New York Law School. Putting knowledge into practice! Saving lives!

Two really important points to remember from Amín’s moving account. First, because of BIA and AG interpretations intentionally skewed against asylum seekers from Latin America, many of whom should fit squarely within the “refugee” definition if properly interpreted, many refugees from the Northern Triangle intentionally are “left out in the cold.” That, plus lack of representation and intentionally poor treatment by DHS meant to discourage or coerce individuals results in unrealistically “depressed” asylum grant rates. Many who have been to the border report that a majority of those arriving should fit within asylum law if fairly and properly interpreted.

Second, many of those who don’t fit the asylum definition are both highly credible and have a very legitimate fear of deadly harm upon return. They merely fail to fit one of the “legal pigeon holes” known as “nexus” in bureaucratic terms. The BIA and this Administration have gone to great lengths to pervert the normal laws of causation and the legal concept of “mixed motive” to use “nexus” as an often highly contrived means to deny asylum to those genuinely in danger. A better and more humane Administration might devise some type of prosecutorial discretion or temporary humanitarian relief as an alternative to knowingly and intentionally sending endangered individuals and their families back into “danger zones.”

What clearly is bogus is the disingenuous narrative from Kirstjen Nielsen and other Administration officials that these are “frivolous” applications. What is frivolous is our Government’s cavalier and often illegal and inhumane treatment of forced migrants who seek nothing more than a fair chance to save their lives and those of their loved ones.

Whether they “fit” our arcane and intentionally overly restrictive interpretations, they are not criminals and they are not threats to our security. They deserve fair and humane treatment in accordance with our laws on protection and Due Process under our Constitution. What they are finding is something quite different: a rich and powerful (even if diminishing before our eyes) country that mocks its own laws and bullies, dehumanizes, and mistreats those in need.

PWS

03-23-19

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog.

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections.

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday.

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!

Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.

Go to this link for a redacted copy of Judge Trujillo’s decision:

Asylum grant PSG Mexican women

U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.

It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.

It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.

That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”

Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”

PWS

03-21-20

ABA COMMISSION ON IMMIGRATION CONFIRMS WHAT I’VE BEEN BEEN SAYING ALL ALONG: IMMIGRATION COURTS ARE “FUBAR” & INTENTIONALLY BEING MADE WORSE BY TRUMP ADMINISTRATION’S “MALICIOUS INCOMPETENCE”

ABA COMMISSION ON IMMIGRATION CONFIRMS WHAT I’VE BEEN BEEN SAYING ALL ALONG: IMMIGRATION COURTS ARE “FUBAR” & INTENTIONALLY BEING MADE WORSE BY TRUMP ADMINISTRATION’S “MALICIOUS INCOMPETENCE”

Washington, DC. At a public meeting today at the National Press Club, the ABA Commission on Immigration rolled out its 2019 update to its 2010 report on “Reforming the Immigration System.” ABA President Bob Carlson led off by strongly reinforcing the organization’s commitment to Due Process and equal justice for all. Legislation, restructuring, and reform are the three themes.

In short, most of the helpful suggestions in the 2010 report were ignored. Some of the few that were implemented by the Obama Administration, the most helpful of which was more widespread use of prosecutorial discretion to rationalize court dockets, were intentionally reversed by the Trump Administration. The Trump Administration is mindlessly leading a “race to the bottom” where fairness, impartiality, scholarship, efficiency, and due process have incredibly and inexcusably regressed while backlogs have grown exponentially as a result.

One of the key findings was that under the Trump Administration, “policies have been put in place that seek to limit access to asylum, counsel, and the courts themselves. There is little regard for the human cost of detention and deportation.”

The solution set forth by the ABA is very straightforward: Congress must create an independent Article I U.S. Immigration Court outside the Executive Branch. Until that happens, justice and due process will continue to be compromised in Immigration Court, and our entire legal system will be endangered.

One of the most astute observations by the panelists was that putting more new judges into the current dysfunctional court system would be counterproductive. Every American should be ashamed of the Trump Administration’s “maliciously incompetent” maladministration and intentional abuse of our Immigration Court system. When asked about what they could do to address this national disgrace, panelists told the audience to “contact your legislators and demand action on Article I and other essential reforms contained in the report.”

At the end of the presentation, the ABA presented an award to Arnold & Porter partner Larry Schneider for the firm’s help in researching and preparing the report.

FULL DISCLOSURE: I previously was a witness before the ABA Commission.

Here’s a link to the complete two-part report and relating materials: https://www.americanbar.org/groups/public_services/immigration/

PWS

03-20-19

SUPREMES BOOST ADMINISTRATION’S “GULAG” WITH SPLIT DECISION ON MANDATORY DETENTION STATUTE — NIELSEN V. PREAP — Why Both Sides “Live To Fight Another Day”

HERE’S THE “FULL TEXT” OF THE DECISION:

PREAP-16-1363_a86c

SYLLABUS BY COURT STAFF (NOT PART OF THE OPINION):

NIELSEN, SECRETARY OF HOMELAND SECURITY,

ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 16–1363. Argued October 10, 2018—Decided March 19, 2019*

Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). Another provision, §1226(c)—enacted out of “concer[n] that deportable crimi- nal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,” Demore v. Kim, 538 U. S. 510, 513—sets out four categories of aliens who are inadmissible or de- portable for bearing certain links to terrorism or for committing spec- ified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one excep- tion not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), al- lege that because they were not immediately detained by immigra- tion officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Be- cause the Government must rely on §1226(a) for their detention, re- spondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The Dis- trict Courts ruled for respondents, and the Ninth Circuit affirmed.

——————

* Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

2 NIELSEN v. PREAP Syllabus

Held: The judgments are reversed, and the cases are remanded.

831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s interpretation of §1226(c) is contrary to the plain text and structure

of the statute. Pp. 10–17, 20–26.
(a) The statute’s text does not support the argument that because

respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely com- plements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac- count of salient identifying features,” Webster’s Third New Interna- tional Dictionary 610. That is the relevant definition since the indis- putable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Sec- retary in §1226(c)(1) would be incoherent. Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in con- text.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of para- graph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)– (D). Pp. 10–14.

(b) Subsections (a) and (c) do not establish separate sources of ar- rest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)’s prohi- bition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)’s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)’s sentence on the release of aliens to include the words “[e]xcept as provided in subsection (c).” It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested

Cite as: 586 U. S. ____ (2019) 3

Syllabus

“pursuant to” subsection (c)(1) or “under authority created by” sub- section (c)(1), but to anyone so much as “described in” subsection (c)(1). Pp. 15–17.

(c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The “when . . . released” clause still functions to clarify when the duty to arrest is triggered and to exhort the Secre- tary to act quickly. Nor does this reading have the incongruous re- sult of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoid- ance does not apply where there is no ambiguity. See Warger v.Shauers, 574 U. S. 40, 50. Pp. 20–26.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICEKAVANAUGH, concluded in Parts II and III–B–2:

(a) This Court has jurisdiction to hear these cases. The limitation on review in §1226(e) applies only to “discretionary” decisions about the “application” of §1226 to particular cases. It does not block law- suits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___. For reasons stated in Jennings, “§1252(b)(9) does not present a jurisdictional bar.” See id., at ___. Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant in- junctive relief is irrelevant because the court had jurisdiction to en- tertain the plaintiffs’ request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained ei- ther cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hear- ing. Even if that had not been so, these cases would not be moot be- cause the harms alleged are transitory enough to elude review.County of Riverside v. McLaughlin, 500 U. S. 44, 52. Pp. 7–10.

(b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials “‘shall’ act within a specified time” does not by itself “preclud[e] ac- tion later,” Barnhart v. Peabody Coal Co., 537 U. S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf.Woodford v. Garceau, 538 U. S. 202, 209. Pp. 17–20.

JUSTICE THOMAS, joined by JUSTICE GORSUCH, concluded that three statutory provisions—8 U. S. C. §§1252(b)(9), 1226(e), and 1252(f)(1)—limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 1–6.

ALITO, J., announced the judgment of the Court and delivered the

4 NIELSEN v. PREAP Syllabus

opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II and III–B–2, in which ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a con- curring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

WHY THE SOLICITOR GENERAL’S OFFICE SHOULD BE HAPPY:

🙂 They won;

🙂 They whipped the detested Ninth Circuit and bested several of those “liberal West Coast District Judges” who are always meddling, and also whacked the ACLU who was representing the plaintiffs;

🙂 While the issue regarding the constitutionality of mandatory indefinite detention without bond remains, there is some reason to believe that the Supremes will eventually take that issue and the “breakdown” will be the same, thus resulting in another Government victory;

🙂 For now, except in the 9th Circuit, the DHS is free to “slammerize” indefinitely without recourse any foreign national convicted of certain deportable crimes, even if the conviction was long ago, the sentence has been completed, and the individual has stayed out of trouble since release;

🙂 The longer the constitutional issue kicks around the lower Federal Courts, the more “Trumpy” those courts are likely to get.

WHY THE ACLU AND THEIR ALLIES SHOULD ALSO BE HAPPY:

🙂 They prevailed on the issue of the Court’s jurisdiction to decide the claim;

🙂 This case was decided on a very narrow statutory basis involving rather arcane linguistic analysis;

🙂 The issue of the constitutionality of the mandatory detention statute remains very much “alive” in the lower Federal Courts;

🙂 The ACLU and other plaintiffs have preliminarily won on the constitutional issue in the Ninth Circuit (Rodriguez v. Marin) following a Supreme Court remand (Jennings v. Rodriguez); therefore, an injunction in the Ninth Circuit remains in effect requiring bond hearings every six months for those mandatorily detained pending further proceedings in the U.S. District Court;

🙂 The ACLU is likely to prevail on the constitutional issue in the District Court and the Ninth Circuit; depending on the pace of the lower court proceedings, Rodriguez might not come up for decision by the Supremes until after the 2020 election;

🙂 If the Democrats were to sweep the 2020s (a big “if,” to be sure, particularly after 2016), the ACLU might be able to convince a Democratic President and Congress to solve the problem with legislation mitigating mandatory detention without review, thereby perhaps “mooting” the Supreme Court case before decision;

🙁 But, keep in mind that once in power, Obama and other Democratic Administrations embraced mandatory detention and were more than happy to defend it in court and employ it in practice;

🙂 On the other hand, the ACLU probably can count on the Trump Administration to continue to pile up a record of detention abuses that will “rev up” more Democratic political sentiment for at least some statutory restraints on, if not outright abolition of, long-term civil immigration detention.

Stay tuned!

PWS

03-18-19

THE HILL: Nolan Says That Border Security Is Now In Speaker Pelosi’s Hands

Pelosi has won — and she’s now the only one able to secure the border

By Nolan Rappaport

© Greg Nash

House Speaker Nancy Pelosi (D-Calif.) claims that “Democrats are committed to border security,” but the Democrats have opposed President Donald Trump’s efforts to do that.

Pelosi supported the joint resolution to terminate Trump’s declaration of a National Emergency at the Southern border. The resolution was passed in both chambers and sent to Trump on March 14. He vetoed it the next day.

Congress appears unlikely to override the veto, so the fate of the declaration probably will be decided by the same Ninth Circuit Courts that flouted precedent to block Trump’s travel ban, which almost certainly will result in another lower court defeat for Trump. The Supreme Court, however, may reverse the lower courts, as it did in the travel ban case. But that could take quite some time.

The Catch-22 at the heart of the matter

During the Bill Clinton administration the government entered into a settlement agreement that makes it difficult to remove aliens who bring their children with them when they make an illegal border crossing.

This became apparent last May, when Trump announced a zero-tolerance border security enforcement policy. Illegal entries are a crime: The first offense is a misdemeanor and subsequent offenses are felonies. Trump tried to use a no exceptions threat of a criminal prosecution as a deterrent. “If you cross the border unlawfully, then we will prosecute you,” he said — no exceptions for aliens who bring their children with them.

The problem was prosecution of an alien who has his child with him requires the government either to detain the child with him while he is being prosecuted or separate him from his child.

Read more at https://thehill.com/opinion/immigration/434524-pelosi-has-won-and-shes-now-the-only-one-able-to-secure-the-border

Published originally on The Hill.

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

Go on over to The Hill at the above link to read Nolan’s complete article.

Seems like the Government’s best bet would be to work cooperatively with NGOs and pro bono groups to link families who pass credible fear or who have court challenges pending to pro bono attorneys and to charitable organizations who can aid in temporary resettlement. In those situations, represented families almost always show up for their court hearings and keep the courts, DHS, and the lawyers properly informed of their whereabouts.

If the Government deems it a “priority” to move these cases to the “front of the court line” then they can remove some of the cases that are more than three years old and do not involve individuals with crimes from the already overcrowded Immigration Court dockets. The hundreds of thousands of pending and moribund “Non-Lawful Permanent Resident Cancellation of Removal Cases” would be fairly easily identifiable and logical candidates.

That will allow the Immigration Courts to concentrate on fair and timely adjudications of the more recent asylum claims without contributing to the overwhelming backlog. Some fair precedents by the Article III Courts (under this DOJ, the is no chance of fair asylum precedents being issued administratively) as to what claims do and do not properly qualify for asylum and relief under the CAT would eventually help provide meaningful guidance to Asylum Officers, Immigration Judges, BIA Appellate Judges, and the private bar, and well as DHS Attorneys. This in turn, would help minimize the court time spent on cases that either were “slam dunk grants” or had “no chance” even under the most favorable view of the facts for the applicant. Both the DHS and the private bar would thus be motivated to spend time on the cases that really needed to be litigated in Immigration Court.

Additionally, greater predictability in the U.S. asylum system might also assist human rights groups working with individuals in the Northern Triangle and in Mexico to make better, more informed, and more realistic decisions as to whether to pursue humanitarian resettlement opportunities in Mexico and other countries in the hemisphere that might offer such.

If Congress were going to act, the most helpful changes would be 1) establishing an independent Article I immigration Court to replace the dysfunctional mess that has been created over the past several Administrations but severely and unnecessarily aggravated by this Administration; 2) amend the Act’s definition of “asylum” to make it clear that “gender” is a subset of “particular social group” persecution; 3) authorizing some type of “universal representation program” for asylum applicants in Immigration Court; and 4) requiring the Administration to reinstitute a meaningful “outside the U.S.” refugee processing program for Latin America in conjunction with the UNHCR;

No, it wouldn’t solve all problems overnight. Nothing will. But, it would certainly put an end to some of the Administration’s wasteful and bad faith “gimmicks” and unnecessary litigation that now clog our justice system. That’s at least the beginning of a better future and a better use of resources.

PWS

03-18-19

ATTENTION NDPA NY BRIGADE AND ALL OTHER “DUE PROCESS WARRIORS” IN THE NY METRO AREA: Come Hear About The Dysfunctional Due Process Mess In Our U.S. Immigration Courts & The Article I Solution!

This is my final “scheduled stop” in the NY Metro Area this Spring. don’t miSs it!

PWS

03-18-19

NQRFPT: Due Process, Administrative Competence, Common Sense MIA From Initial “Return to Mexico” Hearings, Forcing Frustrated Judge Into A Round Of “Aimless Docket Reshuffling!”

NQRFPT = “Not Quite Ready For Prime Time”

MIA = “Missing in Action”

ADR = “Aimless Docket Reshuffling”

https://www.sandiegouniontribune.com/news/immigration/sd-me-remain-in-mexico-hearings-20190314-story.html

Kate Morrissey reports for the San Diego Union Tribune:

Two of the three asylum seekers who were supposed to show up for the first immigration court hearings under the “Remain in Mexico” policy did not make it across the border on Thursday to appear.

After the Homeland Security Secretary announced what she called a “historic” program, known officially as Migrant Protection Protocols, in December, many wondered — and worried — about the logistics of shuttling migrants back and forth across the border for court hearings.At least one of the people who had been returned to Tijuana after asking for asylum at the San Ysidro Port of Entry missed the court hearings because of what Assistant Chief Immigration Judge Rico Bartolomei called a “glitch” in the scheduling system.

Court cases for the program were supposed to start next Tuesday, but somehow cases got scheduled for this Thursday, Bartolomei explained. At first, the court tried to reschedule those hearings for Tuesday but realized it wouldn’t have a way to communicate that effectively with the asylum seekers in Mexico.

“At the end of the day, we kept the hearings as scheduled,” Bartolomei explained.

The issue was that when the court rescheduled to March 19, anyone who called its toll-free number to check for court date updates thought that the hearings would be on March 19. That happened in the case of one Honduran woman who had Los Angeles-based attorney Olga Badilla representing her.

Badilla explained to the judge that she had only learned the day before that the hearing had moved back to March 14 and that her client hadn’t found out in time to be at the port of entry at 9 a.m. She arrived a couple of hours later, but Customs and Border Protection officers wouldn’t let her into the U.S. for her hearing.

“She’s present at the port of entry and ready to come in,” Badilla told the judge, asking for the court’s help. “It’s an unusual situation given the circumstances.”

Bartolomei turned to the government attorney, Jason Aguilar, chief counsel for Immigration and Customs Enforcement.

Aguilar said the judge should order the woman deported in her absence.

Bartolomei denied that motion, saying that the woman had received “insufficient notice” of the hearing. Instead, he scheduled a future date with Badilla to turn in the woman’s asylum application.

Though the woman was given another chance to show up for court, she ran into more problems down at the border. Her permit to stay in Mexico was on the verge of expiring in anticipation of her crossing into the U.S. for court. If she had crossed and returned again, she would likely get a new one. Without entering the U.S., she was about to become deportable from Mexico.

When court ended for the day, Badilla went to try to help her client.

The other person who didn’t show up for court, a 24-year-old man from Honduras, had also had his case rescheduled through the court’s glitch.

ICE attorney Aguilar again moved to have the man ordered deported.

Bartolomei pushed the ICE attorney about whether it made sense to order someone deported from the U.S. while they are still in Mexico. He asked if it made more sense to consider the person’s application for admission withdrawn.

According to immigration attorney Tammy Lin, a withdrawal would limit potential restrictions on the man’s ability to come to the U.S. in the future. A deportation order would make it much more difficult for the man to come to the U.S.

During the conversation, Bartolomei sighed audibly, weighing the options before him.

Then he decided to reschedule his case for the 19th to see if the man showed up then. Since he didn’t have an address to send the new hearing notice to, he gave it to the Department of Homeland Security to pass on to the man.

The one person who did show up did not have an attorney. Also from Honduras, the man arrived at El Chaparral plaza outside the port of entry well before 9 a.m. A volunteer from a legal services organization that supports migrants in the plaza every morning before they ask for asylum saw him and escorted him to the gate inside the port that marks the entry to the U.S.

He waited in line, shuffling down the spiral walkway in a mix of commuters, shoppers and friends returning from trips abroad. When he got to the front of the line, a Customs and Border Protection official held him to the side to wait for the other two who were supposed to come.

He was nervous, he said.

A few minutes after 9 a.m., several CBP officers and two plainclothes officials took him into the U.S. Officers from Immigration and Customs Enforcement transported him from the port of entry to the office building in downtown San Diego that houses the immigration court.

He arrived at the court before noon and sat in a corner of the back row of benches, head bowed.

When it was his turn to face the judge, he spoke softly into the microphone and watched attentively as Bartolomei explained each of the documents he had received.

Bartolomei asked him if he wanted more time to find an attorney.

Yes, the man replied.

The judge granted him another month to try to find someone to help him and told him he would likely be taken back to Mexico again.

“I know it will be difficult to try to get an attorney from there,” Bartolomei told him, urging him to try his best to find a lawyer to take his case.

When his turn was over, ICE officers quickly whisked him away, back to the port of entry.

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

Notice will continue to be an issue in this ill-designed process. It actually appears that it will be impossible to properly serve anyone at a “last known address” in Mexico. Thus, any in absentia hearings should ultimately be vacated for lack of notice and will have to be re-started. That’s what “ADR” is all about.

The ICE Attorney was both unhelpful and probably unethical when he insisted on frivolously moving for an “in absentia” order given the obvious scheduling and notice issues attributable to his agency’s choice of this “historically” goofed up and perhaps illegal method of proceeding. Unwillingness to assume any responsibility for their own frequent screw ups and predictably bad policy choices is certainly a “hallmark” of the Trump Administration!

Once of the things that made the Arlington Immigration Court run as well as it did during my tenure was the sense of justice, common sense, practicality, and overall cooperation and helpfulness of the ICE Chief Counsel’s Office in working with the Immigration Judges and private bar to “keeping the ball moving down the field.” Apparently deprived of such a professional approach by the mindless “due process and common sense be damned policies” of this Administration, today’s Immigration Judges face additional roadblocks in promoting efficiency and fairness in accordance with the law. No wonder the backlogs are growing exponentially even with more Immigration Judges on the bench!

Here’s how might a “due process and efficiency-oriented system” could have dealt with the same issues:

Work with the private sector to obtain local counsel for individuals who have passed the “credible fear” process;
Find out how long it will take the lawyer to prepare the application for asylum for filing with the Immigration Court;
Choose a compatable date for filing at the “Initial Master” from a computerized list of “available first Master dates” on Judge Bartolomei’s calendar made available by EOIR;
Release the applicant to a local nonprofit who will help insure that he or she understands the system and the importance of keeping attorney meetings and appearing before the Immigration Court as scheduled;
At the first Master, the attorney files the completed asylum application with Judge Bartolomei, and he assigns an Individual Hearing date;
Presto! A system that works, uses court and judicial time wisely, and promotes fair and efficient results.

Contrast that with the mindless system described above. The key: under the current system everybody has wasted time and effort, particularly Judge Bartholomei, but without getting any closer to assigning an actual Individual Hearing date than on the day the applicant passed “credible fear.”

That’s how Government-created “bogus emergencies” happen. It’s really important that folks like Kate keep reporting on the “nitty gritty” of the Trump Administration’s “malicious incompetence” and how it is destroying and degrading our immigration and justice systems on a daily basis.

Undoubtedly, this Administration will attempt to shift blame for its own predictable failures to the victims — asylum seekers, their lawyers, and Immigration Judges. It’s important that the Trump Administration be held fully accountable, both in the present and for history, for the consequences of their terrible White Nationalist restrictionist agenda.

PWS

03-16-19

DORIS MEISSNER @ MPI: Administration’s Failed Border Enforcement Policies Anchored In Past & Distorted By Xenophobia — Most Of Today’s Arriving Migrants Seek & Deserve Safety & Protection Unavailable In “Failed States” Of Northern Triangle!

https://www.washingtonpost.com/outlook/2019/03/14/real-border-problem-is-us-is-trying-stop-wrong-kind-migrants/

Doris writes in the Washington Post:

No matter what happens with Thursday’s vote on President Trump’s declaration of a national emergency, the real root of the difficulties at the U.S.-Mexico border won’t be addressed.

The whole approach the U.S. government takes at the border is geared to yesterday’s problem: Our border security system was designed to keep single, young Mexican men from crossing into the United States to work. Every day, more evidence mounts that it’s not set up to deal with the families and unaccompanied children now arriving from Central America — in search not just of jobs, but also of refuge. The mismatch is creating intolerable humanitarian conditions and undermining the effectiveness of border enforcement.

From the 1960s to the early 2000s, the reality of illegal immigration at the southwest border was overwhelmingly economic migration from Mexico. The U.S. responded, especially once the Sept. 11, 2001, attacks prompted tighter security everywhere, by building up a well-resourced, modernized, hardened border enforcement infrastructure, with more staff and more sophisticated strategies. Successive Congresses and administrations under the leadership of both Democrats and Republicans have supported major investments in border security as an urgent national priority. About $14 billion was allocated in fiscal year 2017 for U.S. Customs and Border Protection, a steep rise from $9.5 billion a decade earlier.

From a peak of 1.6 million apprehensions in fiscal 2000 — with 98 percent of those apprehended Mexicans — border apprehensions have fallen by about three-quarters, to 397,000 last year. More Mexicans now return to Mexico annually than enter the United States. The turnaround has been dramatic and is due to the combined effects of economic growth, falling fertility rates and improved education and job prospects in Mexico; job losses in the United States surrounding the 2008-2009 recession; and significant border enforcement successes.

At the same time, an entirely different type of migration became more common. Beginning in 2012, the number of unaccompanied minorsfrom Central America — principally El Salvador, Guatemala and Honduras — crossing the border illegally jumped sharply. Modest numbers of such migrants had been arriving for many years. However, by 2014, the arrival of unaccompanied children spiked to more than 67,000 and, for the first time, the number of non-Mexican apprehensions exceeded those of Mexicans.

By 2016, the Central American flows became predominantly families with young children. Some were fleeing their countries in search of economic opportunity, but many were seeking safety and protection from widespread violence and gang activity that especially targets young people approaching or already in their teens.

Last year, 40 percent of border apprehensions were either of migrant families or unaccompanied minors, as compared to 10 percent in 2012. The proportion has risen to 60 percent in recent months, and just-released numbers show 66,450 apprehensions last month, the highest February total in a decade.

The important story, however, is not so much the numbers, which remain well below earlier peaks, as it is the change in the character of the flow. Today’s migrants include especially vulnerable populations, a large share of whom are seeking safety. As my organization reported recently, more than one in three border crossers today is an unaccompanied child or asylum seeker, up from approximately one in 100 a decade ago.

Yet the U.S. government’s posture has not been recalibrated, remaining pointed toward an illegal immigration pattern that has largely waned.

[Trump isn’t trying to solve border problems. He’s trying to make them look worse.]

Today, many people who cross the border illegally actively seek out and turn themselves in to enforcement officials so they can apply for asylum. Others have been presenting themselves at ports of entry, seeking protection. Ground sensors, camera towers and similar surveillance technology and infrastructure are less helpful as a result.

Border Patrol facilities are designed for holding people only for short periods because that used to be all they needed to do: Most Mexicans who are apprehended are processed and returned across the border within hours. The same is not the case for Central Americans and others from noncontiguous countries, increasing numbers of whom are arriving exhausted and in ill health after lengthy, arduous journeys. They can’t simply be driven back to Mexico, because they’re not from there in the first place.

Border Patrol stations are ill-suited for dealing with these vulnerable populations, as the tragedy of the two young children who died recently in Border Patrol custody sadly illustrates. The situation has been further taxed by the increasing numbers of what the Border Patrol refers to as large-group arrivals: In the first five months of this fiscal year, the Border Patrol encountered 70 groups of more than 100 migrants crossing illegally, up from 13 last year and two the year before.

Asylum officers and immigration judges, not Border Patrol and port-of-entry inspectors, make the decisions in asylum cases. The asylum and immigration court systems don’t have anywhere near the sustained funding spent on border enforcement programs. As larger shares of migrants have arrived claiming asylum, workloads have ballooned into huge backlogs as a result. And even in cases where resources have been provided, they are not always used: Congress has allocated funding for 534 immigration judges, and yet only 427 are serving. Children and families are vulnerable to physical and emotional health dangers that argue for minimal detention periods, but their cases can take months or years to decide. And policies that precipitated the separation of more than 2,700 children from their parents have only added to the trauma.

These and other factors point to the need for dramatically different border management policies and budget decisions from those made in the past, largely successfully, to deter illegal inflows from Mexico.

Testifying in Congress last week, Homeland Security Secretary Kirstjen Nielsen said the situation at the border has reached a “breaking point.” There is a crisis, but it is a crisis of an asylum system that is severely overburdened by the major uptick in humanitarian protection claims.

The asylum system can only work effectively with timely, fair decisions about who is eligible for protection — and who is not, and therefore must be returned to their country of origin. More broadly, just as improved conditions in Mexico have been key to reducing illegal crossings of Mexicans, the best way to prevent Central Americans from fleeing their native countries must include attacking the violence, corruption and poverty driving them to leave home.

Yet the Trump administration has curtailed access to asylum and ended a program allowing some Central Americans to apply for protection from within the region to keep pressure off the border. Most recently, the administration rolled out a new policy that forces some asylum seekers to stay in Mexico in highly uncertain conditions to await asylum decisions, which they are told may take up to a year. Such measures seem only to be spurring on prospective migrants to journey to the U.S. before policies get even more restrictive.

This is not to say there are easy answers. Dealing with mixed flows is a challenge not only for the United States but for other major migrant destinations in Europe and beyond. Building systems that can sift through mixed flows to fairly and efficiently provide protection to those who truly qualify and identify and remove those who don’t is difficult.

[Trump is right: There is a crisis at the border. But he’s causing it.]

But course corrections are well past due.

Steps that could be taken now include devoting money and applying new strategies to the asylum and immigration court systems so they can effectively handle a burgeoning caseload, rather than greatly narrowing who can access them. Building suitable Border Patrol facilities for receiving children and families and training agents and other staff to spot and act upon medical and other emergencies would also be required. The government could foster networks of community-based monitoring and case management programs with legal representation that provide alternatives to detention so migrants are detained for minimal periods, at less overall expense and are treated more humanely, but still appear for their asylum interviews and deportation hearings.

Ramped-up anti-smuggling initiatives and intelligence cooperation with neighboring countries are a must. Affected communities on both sides of the border need support and new partnerships with government actors, especially in the face of caravans, a method of movement on the rise among Central Americans to gain safety in numbers but posing new logistical and political difficulties for governments. And U.S. policies must give greater priority to our geographic neighborhood in developing longer-term solutions with Mexico and Central America that are in our joint national interests.

Rather than unproductive political fights over walls and national emergency declarations, these steps would go a long way to restoring order at the border. It is past time for policymakers and the public to recognize there are no quick fixes but that, even with migrant arrivals on the rise, the border can be managed through an array of proven policy initiatives.

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

It’s no surprise to me that an Administration committed to a racist, White Nationalist political agenda, rather than governing in the public interest, will consistently fail to solve problems and will govern incompetently.

Families who turn themselves in to the Border Patrol at the first opportunity to apply for asylum are by no stretch of the imagination “law enforcement issues” except to the extent that Trump’s inappropriate unwillingness to process them fairly at ports of entry and to establish a robust refugee program for the Northern Triangle has created a misdirection of law enforcement resources. To claim otherwise is totally disingenuous.

PWS

03-15-19

BETH FERTIG @ THE GOTHAMIST: Mismanaged Immigration Courts’ Failed Technology Results In Cancelled Hearings, More “Aimless Docket Reshuffling” That Needlessly Impedes Due Process & Adds To Already Out Of Control Backlog!

http://gothamist.com/2019/03/12/immigration_court_video_failure.php

Beth writes:

Hundreds of immigration court hearings have been canceled because of video malfunctions in New York City, according to data obtained by WNYC.Detained immigrants often see judges by video when they’re held in remote locations, but last year a court on Varick Street in Manhattan switched to hearing cases through video technology. The immigrants who use that court are held in regional detention centers and were previously transported to Varick Street for in-person hearings.The change prompted a lawsuit by immigration attorneys, who claim the video equipment frequently breaks down and deprives their clients of due process.

New data obtained through a Freedom of Information Act request appears to support their claim. A total of 316 hearings in New York were postponed in Fiscal Year 2018 due to video malfunctions, according to the Executive Office for Immigration Review (EOIR), which runs the immigration courts.

That’s a big jump from a total of 12 postponements due to video malfunctions in the previous two fiscal years combined. Andrea Saenz, supervising attorney at Brooklyn Defender Services, said those numbers seem accurate.

“It just goes to show that the video hearings are not giving our clients due process,” she said. Her group is one of of three public interest law firms suing the government over the use of video in New York.

“People are not getting fair hearings if they cannot rely on the technology to actually connect them to the judge who’s able to correctly hear them and assess their testimony,” she added.

But a spokesman for EOIR said things are actually improving. John Martin said the agency “routinely monitors the effectiveness” of video teleconferencing. “The FOIA statistics suggest that video malfunctions at the New York City immigration courts are decreasing in FY 2019 compared to FY 2018,” he added.

The data show 49 hearings were canceled due to technical problems from October 1st through the end of December, the first quarter of FY 2019.

But Saenz said this number could be falling because detainees from the Bergen County detention center, in New Jersey, have been brought to court in person since December because the technical problems are so serious at that facility.

Immigration courts around the nation have been increasingly relying on video technology, promoting it as an efficiency measure. Last year, the government told WNYC that only around 800 of nearly 126,000 video hearings were postponed for technical problems. But our freedom of information request revealed there were actually more cancellations, totaling 1,090 nationwide.

But EOIR’s Martin explained the discrepancy by noting the original number provided for FY 2018 did not include every type of hearing.

Regardless, the new data show a huge spike in canceled hearings because there were only 403 adjournments due to video problems two years earlier.

Hearings conducted by video are often used for immigrants at detention centers in remote locations. Immigration and Customs Enforcement started using them in New York City last June. The agency originally blamed the decision on safety concerns, citing a large protest by immigration advocates outside the court building on Varick Street. It then said hearings by video are more cost efficient.

Public defenders are also complaining that hearings at Varick Street are now being expedited. They said they were told on Friday that trials scheduled for later this spring will be held as soon as next week because the court is adding more judges. EOIR did not respond to a request for comment.

Saenz said attorneys were caught off guard, and many aren’t prepared to make complicated arguments so quickly, such as asylum cases that require lots of documentation including medical exams and evidence from an immigrant’s home country.

“This is not efficient and this is not a fair way to run a court system,” she said.

Beth Fertig is a senior reporter covering courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.

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

EOIR has failed after nearly two decades of wasted time, money, and effort, to implement any type of e-filing in a system now plagued with literally millions of “paper files in the aisles” and everywhere else. But, they were able to roll out the totally bogus “Immigration Judge Dashboard” to needlessly up the pressure on already overstressed Immigration Judges by giving them constant reminders on the bench of the utterly sophomoric and totally counterproductive “production quotas” instigated by biased and incompetent non-judicial politicos at the DOJ with the acquiescence of EOIR “managers” who would make jellyfish look like vertebrates by comparison.

When will Congress and/or the Article IIIs finally take the long overdue action to remove the “Keystone Cops” from inflicting even further damage on this parody of court system that they have so thoroughly destroyed with their highly politicized and unethical initiatives and their absolutely mind-boggling management incompetence?

It would be a joke; except that this particular “joke” is endangering and ruining human lives, inflicting needless misery, and squandering scarce resources on a daily basis. As Casey Stengel would say, “Can’t anyone here play this game?” Right now, the answer appears to be “No.” And, that includes Congress and the Article IIIs. Eventually, those in the preceding two groups who allow this situation to continue will become complicit and will go down in history as enablers of a system that preyed on the most vulnerable and needy of legal protections among us.

PWS

03-15-09

“DOJ MISMANAGEMENT CENTRAL:” In Failing U.S. Immigration Courts, Political Interference & Idiotic Quotas Push 1.1 Million Plus Case Backlog Higher!

https://apple.news/ASsFWST9rQTSnqDmrVtuZ2Q

Immigration judges say quotas will increase backlog of cases

LOS ANGELES — Immigration judges say a new quota system threatens to increase an already overwhelming backlog of cases in U.S. immigration courts.

The system pushes for judges to close 700 cases a year and calls for them to be evaluated on that quota.

Immigration Judge Ashley Tabaddor said in a March 12 letter to lawmakers that the change would create a perception of government interference in the handling of cases that will lead more immigrants to file appeals.

Tabaddor, who heads the National Association of Immigration Judges, says the move could also flood federal courts with cases.

It can take years to get a decision in the immigration courts, which have more than 800,000 pending cases.

The letter followed testimony last week before a House subcommittee by James McHenry, who oversees the nation’s immigration courts.

A message sent to immigration court officials was not immediately returned.

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

Apparently, it’s going to take a complete collapse of not only the U.S. Immigration Courts but the entire Federal Judicial System (certainly on the horizon as the Immigration Courts’ systematic failure to provide expertise, impartial decision-making, Due Process, and fundamental fairness is pushing more and more cases into the Article III Courts). Unfortunately, to date, both Congress and the Article IIIs seem largely willing to watch disaster unfold, rather than taking the bold remedial action required to wrest the Immigration Court System out of the clutches of a spectacularly unqualified Department of Justice and reconstitute them as an independent court system where the standards of Due Process are taught, applied, and enforced!

In the meantime, lives are being needlessly, sometimes intentionally, endangered each day by our failure to live up to the U.S. Constitution!

PWS

03-14-19

ADAM R. TAYLOR @ SOJOURNERS: Trump’s Immoral Budget!

https://sojo.net/articles/misplaced-moral-priorities-trumps-2020-budget-proposal

Adam R. Taylor writes in Sojourners:

COMMENTARY

By Adam R. Taylor3-14-2019

Print

Budgets are moral documents: They signal what and who we prioritize and seek to protect or uplift. As Christians we can disagree on many issues, but it should be hard to argue that there is an overriding call in the Bible to demonstrate a particular concern for the poor and prioritize the welfare of the vulnerable. This is the moral test by which we must evaluate every budget, perhaps most importantly the federal budget. Based on this test, the Trump administration’s proposed budget priorities for Fiscal Year 2020 fail miserably and must be rejected.

While the president’s budget proposal is increasingly not much more than a messaging document, it represents the first important salvo in the budgetary process, a process that will result in profound, and in some cases life and death, implications for people and communities across the country and world.

That is why we are asking you to join us in sending a clear and resounding message to every member of Congress that they must reject the deeply misguided and unjust priorities in the president’s budget and instead support a moral budget.

Though many media reports will gloss over this or avoid saying so, Trump’s budget priorities will disproportionately hurt the poor and communities of color, which will simply reinforce structural racism and exacerbate economic hardship..

The reason given for the draconian cuts being contemplated to programs like SNAP (food stamps) and Temporary Assistance for Needy Families (TANF) is reducing the annual budget deficit. At the same time, taxes are as low as they’ve been in decades for the richest 1 percent, and the Trump proposes increasing the defense budget to $750 billion next year. The only place to find deficit reduction then, if cutting defense spending or raising taxes on the wealthiest Americans and corporations is off the table, is to decimate the ability of the non-defense part of the government to operate effectively and provide a social safety net. That non-defense spending already is only about 15 percent of the federal budget — a historically low level of 3.2 percent of GDP. It is from this already tiny pool that Trump’s budget proposal wants to extract the vast majority of its deficit reduction.

Here are a few of the most concrete ways the budget harms those already at risk and comforts the comfortable:

The budget includes a request for $8.6 billion in additional funding for Trump’s immoral border wall, a monument to xenophobia and racism.

The budget calls for using an accounting gimmick to get around caps on defense spending by more than doubling the size of a slush fund presidents from both parties have used to fund our ongoing foreign wars (or “overseas contingency operations” as they are euphemistically called). The increase in defense spending also increases the size of the cuts the administration wants to make everywhere else.

The budget envisions cutting SNAP by $220 billion over 10 years, and impose work requirements on many safety net programs, which a recent report from the National Academy of Sciences said “are least as likely to increase as to decrease poverty.”

This budget would also cut the international affairs budget by 23 percent and the humanitarian budget by 30 percent. Even the President’s Emergency Plan For AIDS Relief (PEPFAR)— a government program dedicated to fighting the HIV/AIDS epidemic overseas that has enjoyed longstanding bipartisan support — would be cut by a devastating 22 percent. Taken together these cuts exemplify the administration’s isolationism and disregard for the non-military aspects of foreign policy.

The budget calls for a significant slowdown in spending and a dramatic restructuring of Medicaid, a program primarily designed to provide access to health care for people in poverty.

The budget calls for extending permanently the 2017 tax cut, which gives more dollars to white households in the top 1 percent than the bottom 60 percent of households of all races. This budget would perpetuate our nation’s racial income inequity.

The immorality of the president’s budget goes beyond exacerbating income and wealth inequality. It also envisions radical reductions in spending on agencies that protect the environment and provide housing to the urban poor, to the tune of a 31 percent reduction in discretionary funding for the Environmental Protection Agency and an 18 percent reduction for the Department of Housing and Urban Development, among others.

TAKE ACTION: Reject Trump’s Immoral Budget Proposal

It’s very reasonable to ask: What would a just budget look like? Sojourners is a proud co-founder and co-chair of the Circle of Protection, a group of religious leaders who head Christian denominations and organizations from all major branches of Christianity, unprecedented in its theological breadth. The group was founded in 2011 around the principle that the nation and world’s most vulnerable people, particularly the poor and hungry, must be served and protected by the United States government’s budget. The Circle recently sent a letter to Capitol Hill urging members of Congress in both parties to work together to pass a just budget while also working to end poverty and increase opportunity for all of God’s children. That letter reads in part:

We urge you to pass a bipartisan budget agreement that both reverses harmful sequestration cuts and expands investments in critical programs serving people in poverty—both in the U.S. and around the world. We further urge you to prioritize funding for program areas targeted to help low-income individuals afford the essentials, such as low-income housing assistance, child care, and poverty-focused international assistance. It is not enough to simply prevent cuts to domestic and international anti-poverty programs. We call for additional investments in these programs.

Sojourners, along with our partners in the Circle of Protection, believe that we must focus our persuasion efforts on Congress in the year to come both because that is the branch that authorizes and appropriates government spending, and because this White House continues to display a callous disregard for the economically disadvantaged at every turn — with this week’s budget proposal marking the latest stark example.

On one hand, few of these proposals are new or unique to President Trump. His budget represents a wish-list that might be crafted by any number of right-wing politicians in this country. But at a certain point it’s necessary to point out that regardless of stated intent, the practical effect of many of these policies is to make life better for people who are overwhelmingly white and wealthy while making it more difficult for low-income people, who are disproportionately people of color. If we believe budgets are moral documents that reveal our priorities, this budget reveals an administration determined to protect a deeply inequitable status quo. Join us in resisting and transforming this status quo into a budget that reflects our most deeply held values and priorities.

Adam R. Taylor

Rev. Adam R. Taylor is executive director of Sojourners. He previously led the Faith Initiative at the World Bank Group.

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

Amen. That some so-called “faith groups” continue to blindly back the most immoral and dishonest President in U.S. history is most perplexing.

PWS

03-14-19

HON. ROBERT D. WEISEL @ NY DAILY NEWS: Universal Representation Is A Necessary & Achievable Requirement For Due Process In Immigration Court — Representation Increases Chances Of Success for Migrants 12X!

https://www.nydailynews.com/opinion/ny-oped-everyone-in-immigration-detention-needs-a-lawyer-20190307-story.html

Retired U.S. Assistant chief Immigraton Judge Robert Weisel writhes in the NY Daily News:

As the Trump administration’s immigration agenda sows fear and instability, New Yorkers should be proud that our state is the national leader in ensuring due process for all. In New York, no detained person is forced to face immigration court without an attorney.

Having served nearly three decades as an immigration judge, I can affirm that access to counsel for people facing deportation is an essential component of fairness and an important way to strengthen communities throughout our state.

Consider “Louis’s” story. A lawful permanent resident for more than two decades, “Louis” was a devoted father and beloved basketball and football coach in Rochester when Immigration and Customs Enforcement detained him based on a 10-year-old conviction. While he was detained in Batavia, Louis’s family faced crippling emotional and financial hardship without his income and support. His oldest child suffered a substantial deterioration in his mental health and his young children struggled to cope with their father’s absence.

Had Louis not been a New Yorker, odds are he would have faced deportation without a lawyer. His family would have continued to struggle without their father and, based on the statistical outcomes for unrepresented immigrants, he likely would have been deported — permanently separated from his children and fiancée.

Thankfully, Louis’s case did take place in New York. Louis and his attorneys worked together and won his immigration case. He is now back with his family and coaching sports in his community.

Unlike in criminal court, immigrants in deportation proceedings are not guaranteed an attorney if they cannot hire one. As a result, nearly 70% of detained immigrants and approximately 30% of non-detained immigrants nationwide in deportation proceedings lack legal representation, facing the terrifying prospect of separation from their families while confronting the complexities of U.S. immigration law alone. Representation doesn’t guarantee any outcome, but it does ensure that everyone has access to due process and a fair day in court.

I was the assistant chief immigration judge for New York City and New Jersey in 2013 when a small pilot project, The New York Immigrant Family Unity Project, guaranteed attorneys for immigrants at one New York City immigration court. NYIFUP demonstrated the importance of publicly-funded deportation defense, raising the level of practice in the court and strengthening both fairness and efficiency.

The Vera Institute of Justice evaluated NYIFUP, finding that 48% of immigrants succeeded in their cases, while unrepresented immigrants in the same court were successful only 4% of the time. NYIFUP also produced other benefits — including keeping families together and generating $2.7 million in annual tax revenues from clients who established the right to remain in the United States.

The success of the pilot soon spread NYIFUP statewide. I was proud to partner with Vera when it launched a similar assigned counsel project in the Hudson Valley. Now, as a part of Gov. Cuomo’s Liberty Defense Project, New York State funds deportation defense at all immigration courts upstate, while the New York City Council supports it in New York City.

New York should be proud of its national leadership in ensuring that every detained immigrant in our state has access to representation. However, gaps remain in our state’s approach to ensuring due process for all. Notably, there are 19,000 New Yorkers living in our communities while in deportation proceedings — as opposed to being in detention — who are unable to afford an attorney to represent them.

New York must continue to guarantee counsel for all immigrants facing deportation, and other states should join in our successful experiment.

Weisel served first as an immigration judge, and then as assistant chief immigration judge, in the New York Immigration Court from 1989 until his retirement in 2016. He currently serves as a Senior Consultant to the United Nations High Commissioner for Refugees, advising on issues relating to access to counsel in immigration court proceedings.

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

My good friend and colleague Bob Weisel is “one of the best ever” going back to the early days of EOIR when folks on all levels were actually committed, however imperfectly, to fashioning a better, more professional, and fairer U.S. Immigration Court that would exemplify and promote Due Process.

Of course, our efforts were sometimes flawed. But those of us involved (I happened to be working for the “Legacy INS” at that time which had “spun off” the Immigration Courts into a new entity, EOIR) believed we were learning from our mistakes and successes and were part of an “upward arc” of justice that would, at an appropriate time, evolve into a truly independent court system.

Today, that noble quest has been abandoned in favor of a “race to the bottom” where worst practices are encouraged, “judges” are expected to function like enforcement officers, and Due Process is, at best, an afterthought.

Private attorneys, most serving on a pro bono or “low bono” basis, are among those committed to preserving some semblance of justice and fairness in this broken and dysfunctional system. And, attorneys are making a difference!

There are lots of good ideas out there on how to increase representation — something that actually helps the system produce fair and efficient results and reduce backlogs. For example, a better trained, better regulated, larger corps of “certified non-attorney representatives” working for religious and charitable organizations presents great potential.

But, with the Federal Government interested solely in mindless, wasteful, and ultimately “built to fail” enforcement efforts, at the expense of fairness and correct decisions, the burden falls to states, localities, NGOs, and private sector groups to essentially do the Government’s job for them — uphold and improve our legal system in the face of U.S. Government intransigence and incompetence.

PWS

03-13-19

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Many immigrants are still waiting to have those hearings rescheduled, James McHenry, the director of the Executive Office for Immigration Review which oversees the nation’s immigration courts, told lawmakers during a hearing last week. “The courts are in the process of rescheduling those, they’ve been working overtime since the shutdown ended to get that done,” McHenry said.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

First published on March 11, 2019 / 12:29 PM

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

Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019

Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR. EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws. Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating. Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims. These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside. This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University. That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system. Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration. This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear. The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door. This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process. A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel. We’ve all read stories about children, some as young as 3 years old, being made to represent themselves. That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults. We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values. Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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

It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19

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This is my final “scheduled stop” in the NY Metro Area this Spring. don’t miSs it!

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