"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Category: Report of the Subcommittee on Privatized Immigration Detention Facilities
“The Russia investigation may be undercutting Attorney General Jeff Sessions’ credibility, but it has not undermined his efforts to take the U.S. Justice Department back in time.
The time Sessions wants to go back to features an unforgiving system of mass incarceration that disproportionately targets people of color in a legal structure too often stacked against them.
To do this, the attorney general has issued a slew of policy rollbacks — unfortunate for a Justice Department that was only incrementally making progress toward equal justice under President Barack Obama and Attorney General Eric Holder.
In this sense, Sessions’ Justice Department might be the most effective unit of the Trump administration. If Trumpism’s goal is, at least in, part to destroy the progress achieved under the Obama administration, Sessions’ scorecard so far outstrips his GOP colleagues in the Cabinet and former colleagues in the Senate.
In March, for example, the nation’s top law enforcement officer visited St. Louis, next-door to Ferguson, ground zero for the Black Lives Matter movement. Sessions was in St. Louis talking about crime initiatives but also seeming to criticize one of the most useful tools for documenting police brutality: civilian cell phone videos. The choice of venue could not have been a coincidence. By focusing on “targeted police killings,” he deflected attention from the challenges now confronting law enforcement.
In fact, Sessions has had little to say on how the Justice Department might address matters of police brutality, much less on the matter of Black Lives Mattering. Instead, he has mostly showcased President Donald Trump’s belief that strong policing and incarceration are key to maintaining law and civil order.
. . . .
It is as if Sessions’ Justice Department is operating on a set of alternative facts. Because the statistics are well known: Whites and blacks use and sell drugs at roughly the same rates, and African Americans make up roughly 13 percent of the U.S. population. Yet law enforcement records are remarkably different for each demographic. According to Human Rights Watch: “Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent of those who used drugs in the previous year but close to a third of those arrested for drug possession.” In many states, a felony conviction also means losing the right to vote.
It is as if Sessions’ Justice Department is operating on a set of alternative facts.
Sessions looks eager to re-open the “war on drugs” — or, more appropriately, the war on poor people who use drugs. No available metric on this decades-long war shows any significant success in limiting access to drugs in the United States or in reducing addiction to controlled substances.
What the “war on drugs” has been good at is: stigmatizing poor people afflicted with the disease of addiction; profiling black and brown folks and arresting them at rates exponentially greater than their white counterparts; and creating revenue streams for the Prison Industrial Complex.
. . . .
Sessions’ success will be key if Trump wants to make good on his law-and-order promises.
Sadly, it is working. The Justice Department is slowly transforming into an injustice department right before our eyes.
Mass incarceration, its impact on families and communities and the often racially biased ways in which its policies operate is still one of the most pressing human rights issues of our time. It’s a shame that, in the era of Trump, we are unable to effectively address the challenges we face.
James Braxton Peterson is the author of three books, including “Prison Industrial Complex for Beginners.”
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Read Peterson’s full article at the link.
Peterson doesn’t even get into Gonzo’s brazen attacks on justice for Latinos, immigrants, Dreamers, refugees, LGBTQ individuals, so-called “Sanctuary Cities,” lawyers, reporters, Federal Judges, critics of the Administration, forensic science, private property, or users of legalized marijuana. And, he only mentions in passing Gonzo’s disingenuous statements on Russia and his lackadaisical handling of the real threats Russia poses to our national security. Grim as Peterson’s article is, it actually substantially understates the true carnage that Gonzo is inflicting on our Constitution and our system of justice. It could turn out to be irreparable!
“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?
These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.
Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.
Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.
Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.
And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.
Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”
But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.
The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.
Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.
. . . .
Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.
Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”
Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.
“Immigrants facing deportation fare far better if they have a competent attorney representing them. For example, studies show that for asylum seekers, representation generally doubles the likelihood of being granted asylum.
For many, the ability to secure competent representation in immigration court is truly a matter of life and death. Yet fewer than 30 percent of detained individuals and only two thirds of non-detained individuals are represented in their removal case.
Meanwhile, the government is represented by an attorney in every single case.
While immigrants have a right to counsel in deportation proceedings if they can afford one, they do not have a right to counsel at the government’s expense.
New data released this week by the Transactional Records Access Clearinghouse (TRAC) confirms that a noncitizen’s ability to obtain a lawyer—and the opportunity to meaningfully defend him or herself against deportation—is determined primarily by nationality and whether or not he or she is detained.
The data analysis reflects what detained immigrants, their family members, and the very small number of attorneys who do detained work already know too well—detained immigrants who attempt to retain an attorney face substantial obstacles.
There are myriad reasons that detained immigrants cannot obtain representation.
Because they are detained, they are unable to travel to meet with an attorney in person and must rely on telephones in the facility to call potential attorneys. Phone calls can be prohibitively expensive and phones are often not easily accessible.
Attorney visitation rules vary by facility—many of which are located in rural areas, hours from the attorney’s office. Further, many detained immigrants are simply unable to afford a competent attorney.
. . .
The TRAC data also shows that Mexican immigrants are disproportionately disadvantaged in immigration court. They have the highest detention rate (78 percent), yet the lowest representation rate of all nationalities—only 33 percent according to the report.
More than anything, the recent TRAC numbers emphasize the dire need for increased access to counsel for all immigrants facing deportation, particularly those who are detained.”
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Read the complete article at the link.
The policies being followed by Sessions and the DHS — which encourage more detention in out of the way locations — are specifically designed to diminish representation, increase removals, and deny due process to the most vulnerable among us.
“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum
by JASON DZUBOW on OCTOBER 17, 2017
In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.
Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.
While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”
Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”
First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.
Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.
And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.
None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.
The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.
The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.
Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.
Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.
These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.
I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”
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Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.
Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.
Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
SAFE AT HOME: Sandra Gutierrez fled from Honduras with her children after receiving death threats from gangs and was granted asylum by Judge Dalin Holyoak in 2016. She now lives in Oakland, California, where she takes English classes and works as a janitor. REUTERS/Stephen Lam
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
“GROSS DISPARITIES”
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
Video: High-stakes game of chance in U.S. immigration courts
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
HEADING NORTH: Many Central Americans who sought safety in the United States during the 2014 migrant crisis caught a ride through Mexico on the freight train nicknamed “The Beast,” shown here chugging through Oaxaca state. REUTERS/Jose de Jesus Cortes
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
MEAN STREETS: Gang graffiti covers buildings in Tegucigalpa, the Honduran capital, where rampant violence has prompted thousands of people in recent years to seek asylum in the United States. REUTERS/Jorge Cabrera
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
Reade Levinson
Heavy Odds
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.
Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.
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Nickole speaks truth. Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.
Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.
Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.
In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant. This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”
Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.
I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials.
CHAPARRAL, New Mexico — The freckled 22-year-old never wanted to come to the United States. Her mother had made a good life in their village in El Salvador, and though they were poor, they were happy.
“There were just a few houses in the town, really. It was very peaceful. Very quiet,” the young woman, who asked not to be identified for her protection, recalled, speaking through an interpreter.
But in 2014, the US-based gang Mara 18 came to town with demands for protection payments and dark threats against anyone who stood up to them. Within months, Mara 18 had taken control of the town, and the young woman found herself t
CHAPARRAL, New Mexico — The freckled 22-year-old never wanted to come to the United States. Her mother had made a good life in their village in El Salvador, and though they were poor, they were happy.
“There were just a few houses in the town, really. It was very peaceful. Very quiet,” the young woman, who asked not to be identified for her protection, recalled, speaking through an interpreter.
But in 2014, the US-based gang Mara 18 came to town with demands for protection payments and dark threats against anyone who stood up to them. Within months, Mara 18 had taken control of the town, and the young woman found herself the object of the gang leader’s unwanted attention.
“I promise you, I would have never come here. I miss [my family] a lot. But here I am. I couldn’t stay,” she said, rubbing away the tears running down her face.
So she fled north, seeking asylum in the US. But once she arrived, instead of a safe haven she found a skeptical immigration system that rejected her request and deported her back to El Salvador, in part because she couldn’t prove she faced persecution back home — something that would only change after she’d been tortured and raped.
Within months, she had been brutally beaten and raped by the gang leader, who declared her his property. The attack meant she could finally return to the US and prove her asylum case.
“We can’t give them legal protection until they’re raped.”
Almost 10 months after returning, she is free, but only after struggling against immigration laws that weren’t written with victims like her — a target of an international criminal gang — in mind, and that make it nearly impossible for someone who has been deported to ever gain asylum. It took three tries to gain asylum, three times paying smugglers to take her on the dangerous journey across the border; finally in August, a judge blocked her deportation under an international treaty typically used to give criminal snitches sanctuary for their cooperation. But even that didn’t end things: The Trump administration made her wait in jail nearly a month before agreeing to not appeal her case.
Nancy Oretskin, the Salvadoran woman’s attorney and the director of the Southwest Asylum & Migration Institute, says changes to asylum law are needed to eliminate a perverse incentive for persecuted people to wait until they are tortured or raped before coming to the United States. “We can’t give them legal protection until they’re raped,” Oretskin said. “And even then, we deport many of them after they’ve been raped, and they’re killed. How does that happen in a civilized society?”
Change is unlikely under the current administration. A few months after President Trump was sworn in, Attorney General Jeff Sessions issued new guidance to Department of Justice attorneys that emphasized the need to use prosecutions to “further reduce illegality” and that instructed them to pursue more criminal charges against undocumented immigrants.
he object of the gang leader’s unwanted attention.
“I promise you, I would have never come here. I miss [my family] a lot. But here I am. I couldn’t stay,” she said, rubbing away the tears running down her face.
So she fled north, seeking asylum in the US. But once she arrived, instead of a safe haven she found a skeptical immigration system that rejected her request and deported her back to El Salvador, in part because she couldn’t prove she faced persecution back home — something that would only change after she’d been tortured and raped.
Within months, she had been brutally beaten and raped by the gang leader, who declared her his property. The attack meant she could finally return to the US and prove her asylum case.
“We can’t give them legal protection until they’re raped.”
Almost 10 months after returning, she is free, but only after struggling against immigration laws that weren’t written with victims like her — a target of an international criminal gang — in mind, and that make it nearly impossible for someone who has been deported to ever gain asylum. It took three tries to gain asylum, three times paying smugglers to take her on the dangerous journey across the border; finally in August, a judge blocked her deportation under an international treaty typically used to give criminal snitches sanctuary for their cooperation. But even that didn’t end things: The Trump administration made her wait in jail nearly a month before agreeing to not appeal her case.
Nancy Oretskin, the Salvadoran woman’s attorney and the director of the Southwest Asylum & Migration Institute, says changes to asylum law are needed to eliminate a perverse incentive for persecuted people to wait until they are tortured or raped before coming to the United States. “We can’t give them legal protection until they’re raped,” Oretskin said. “And even then, we deport many of them after they’ve been raped, and they’re killed. How does that happen in a civilized society?”
Change is unlikely under the current administration. A few months after President Trump was sworn in, Attorney General Jeff Sessions issued new guidance to Department of Justice attorneys that emphasized the need to use prosecutions to “further reduce illegality” and that instructed them to pursue more criminal charges against undocumented immigrants.“
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Read the complete, compelling but disturbing, report at the above link.
This illustrates the ugly results of immigration policies pushed by Trump, Sessions, Miller, and tone deaf GOP Legislators like Rep. Bob Goodlatte. They are part of the outrageous Trump Immigration ”Deform” Program drafted by Miller. And this unholy and inhumane group seeks to make things even worse for scared asylum applicants like this. They should be held morally accountable for their behavior, even if they can’t be held legally responsible for the gross abuses of human rights they promote. They seek to turn the U.S. legal system into a major human rights violator. And, it’s not that some of these practices didn’t originate during the Obama Administration. Trump and his White Nationalist cronies have just tripled down on pre-existing abuses.
In fact, many of the women being imprisoned in the American Gulag then turned away are either entitled to asylum or would be if the DOJ-controlled BIA had not intentionally distorted asylum law to deny them protection. In any event, almost all of them should be offered protection under the mandatory Convention Against Torture. TPS or some other form of prosecutorial discretion would also be potential solutions.
But, sending young women back to be tortured and raped, the Trump Administration’s “solution,” is not acceptable.
The well-respected Women’s Refugee Commission just issued Prison For Survivors, a stunning indictment of the Trump Administration’s plans for a New American Gulag and “Gonzo” Immigration Enforcement intended to punish asylum seekers for asserting their statutory and Constitutional rights to protection.
“Prison for Survivors
By Katharina Obser, Senior Program Officer at the Women’s Refugee Commission
Earlier this year, a woman named Clara arrived at the United States border seeking protection from gender-based harm she faced in West Africa. She had endured an arduous journey trying to reach the U.S. border, where officials registered her claim for asylum. Rather than release her to pursue her case, however, officials sent Clara into the vast network of immigration detention facilities across the U.S. Since arriving in this country, she has been treated like a criminal, shackled and transferred multiple times between different detention facilities, awaiting a final decision on her request for protection that will determine her fate.
Alarmed at the increase in the detention of women seeking asylum, the Women’s Refugee Commission (WRC) set out to tell the story of what was happening to women like Clara who came to the U.S. seeking protection under our asylum laws. When we began our research, in 2016, the Obama administration had been prioritizing the detention of border crossers — regardless of any humanitarian consideration. Asylum seekers who crossed the border ended up in detention, often with no hope for release unless they could pay increasingly high bonds, find an attorney to represent them, or both. The Trump administration has only made the situation worse for those seeking asylum, adding as enforcement targets countless other immigrants already living in the U.S. A whole disturbing new chapter is beginning in immigration detention, one that exacerbates the inhumanity and ineffectiveness of our current immigration system.
My colleagues and I spoke with approximately 150 women in detention, nearly all of whom were seeking asylum in the U.S. In the seven detention centers we visited, we heard about women who had clearly been traumatized by their experience of coming to the U.S. expecting protection but, instead, found themselves in jail, deprived of their rights and sometimes separated from their children. I heard story after story of vastly deficient conditions and inadequate medical treatment made even more difficult by a fundamental inability to navigate an immigration case because it is all but impossible to do so from detention without an attorney. Imagine being locked up after fleeing for your life and then not being able to communicate your needs because no interpreter is available. Women reported being shackled while in transit, for hours on end without a break. For example, imagine what it was like for Clara, who like other women reported being shackled while in transit when outside the facility, in her case when coming back from a painful medical procedure
Many of the women we spoke with felt — as anyone would — humiliated at having virtually no privacy when using the toilet in front of others in their dorms, being forced to wear used underwear that was often visibly stained, or having insufficient access to sanitary napkins. “I don’t have money to buy pads,” Iliana told us at the Mesa Verde Detention Center in Bakersfield, CA. “I would rather use that money to call my kids.”
The experiences these women shared with my colleagues and me took place against a backdrop of an immigration detention system that continues to be fueled by political motivations and profit-driven decisions and that has seen a dramatic rise in the proportion of women in ICE detention. In 2009, approximately nine percent of those in ICE detention were adult women. In April 2016 that proportion had grown to 14.6 percent (including in U.S. Immigration and Customs Enforcement’s family detention centers). At the same time, the number of women and girls going through an initial asylum screening — likely from detention — nearly quadrupled between 2013 and 2016. The detention system as a whole grew from 34,000 detention beds in early 2016 to over 40,000 detention beds by the end of that year. Now, the Trump Administration is proposing to expand the system to more than 50,000 beds while simultaneously rolling back key detention standards.
As the 150 women who spoke to my colleagues and me make clear, the U.S. immigration detention system is in dire need of fundamental reform. A vital part of that reform needs to include an assurance from the U.S. Department of Homeland Security that immigration detention facility standards are universally strong and that facilities are actually held to account when those standards are not meaningfully implemented.
Yet, the system continues to fail. Just this week, several civil and human rights organizations, including WRC, filed an administrative complaint with DHS on behalf of women who are or were detained by ICE, women who received grossly inadequate medical care and treatment, exacerbating the trauma that many already experience in detention.
Unfortunately, eliminating the indignities of the current system will not fully address the despair that asylum-seeking women experience when facing the unbelievable cards stacked against them because of their detention. “It’s pointless,” said Clara. “It’s just punishment. The U.S. should just say it’s not accepting refugees.”
The Trump administration and Congress face a choice. Continue to feed more money into a broken immigration detention system that criminalizes and demoralizes vulnerable women immigrants and refugees, or direct ICE to make more humane and smarter choices about immigration enforcement that include release or community support for those seeking asylum in the U.S. Only one choice proves to Clara and so many others like her that, ultimately, the U.S. still does respect the right to seek asylum.”
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Sorry, Katharina, but the Trump Administration has no intention of being deterred by the law, Constitution, or human decency from turning the U.S. into a third world country. And so far, most Article III Courts have simply looked the other way rather than taking on these clearly unconstitutional practices (which, I might add were also carried out by the Obama Administration which also had little regard for the lives or rights of women and children seeking protection). After all, it’s not the Article III Judges’ daughters and granddaughters who are being intentionally abused by the U.S. immigration authorities with a green light from a complicit Congress.
“WASHINGTON (TIP): Congressman Adam Smith (WA-09) and Indian American Congresswoman Pramila Jayapal (WA-07) introduced, on Oct 3, the Dignity for Detained Immigrants Act, legislation to reform the systemic problems in immigration detention system. This bill will end the use of private facilities and repeal mandatory detention, while restoring due process, oversight, accountability, and transparency to the immigration detention system.
“The high moral cost of our inhumane immigration detention system is reprehensible. Large, private corporations operating detention centers are profiting off the suffering of men, women and children. We need an overhaul,” said Congresswoman Jayapal. “It’s clear that the Trump administration is dismantling the few protections in place for detained immigrants even as he ramps up enforcement against parents and vulnerable populations. This bill addresses the most egregious problems with our immigration detention system. It’s Congress’ responsibility to step up and pass this bill.”
“We must fix the injustices in our broken immigration detention system,” said Congressman Adam Smith. “As the Trump administration continues to push a misguided and dangerous immigration agenda, we need to ensure fair treatment and due process for immigrants and refugees faced with detention. This legislation will address some of the worst failings of our immigration policy, and restore integrity and humanity to immigration proceedings.”
In addition to repealing mandatory detention, a policy that often results in arbitrary and indefinite detention, the legislation creates a meaningful inspection process at detention facilities to ensure they meet the government’s own standards. The bill requires the Department of Homeland Security (DHS) to establish legally enforceable civil detention standards in line with those adopted by the American Bar Association. With disturbing track records of abuse and neglect, DHS has a responsibility to ensure that facilities are held accountable for the humane treatment of those awaiting immigration proceedings.
Individuals held in immigration detention system are subject to civil law, but are often held in conditions identical to prisons. In many cases, detained people are simply awaiting their day in court. To correct the persistent failures of due process, the legislation requires the government to show probable cause to detain people, and implements a special rule for primary caregivers and vulnerable populations, including pregnant women and people with serious medical and mental health issues.”
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Since these guys are Democrats, their bill is obviously DOA. But, it is important to start “laying down markers” — even symbolic ones — for the future.
As a former administrative judge who was required to administer and enforce mandatory detention (under DOJ rules, we were not permitted to consider the constitutionality of the mandatory detention statutes and the DHS implementing regulations) for the better part of two decades, I can assure you that it was a totally unnecessary, grossly wasteful, and stunningly unhumane blot on our national conscience and our reputation as a nation that adheres to principles of simple human decency.
There is absolutely no reason why U.S. Imigration Judges cannot determine who needs to be detained as a flight risk or a danger to the community and who doesn’t! But, for that to happen, we also need an independent Article I U.S. Immigration Court not beholden to the Attorney General (particularly one like Jeff “Gonzo Apocalypto” Sessions with a perverse ignorance of Constitutional protections, an overwhelming bias against immigrants, and a record largely devoid of notable acts of human decency.)
Every study conducted during the last Administration, including DHS’s own Advisory Committee, found serious problems and inadequate conditions in private detention and recommended that it be eliminated. Former Attorney General Loretta Lynch actually announced an end to private detention for criminals. Yet, remarkably and unconscionably, the response of the Trump Administration, led by Gonzo Apocalypto, was to double down and expand the use of expensive, inhumane private detention for convicted criminals and for “civil” immigration detainees whose sole “crime” is to seek justice from the courts in America.
Thanks much to Nolan Rappaport for sending this in!
“Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants
Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.
As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.
During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government’s claim that indefinite detention of immigrants is constitutional.
Deputy Solicitor General Malcom Stewart began for the United States by “stress[ing] the breadth of Congress’s constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States.” Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents’ claim as seeking “a constitutional right to be released into this country” during the pendency of their removal proceedings.
Justice Ruth Bader Ginsburg quickly took a poke at the government’s case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: “[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?”
Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for “aliens arriving at our shores … , whatever Congress chooses to give is due process.” Sotomayor’s incredulous response was blunt: “[T]hat’s lawlessness.”
Rejecting Stewart’s claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that “there is something in between,” and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.
Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to “triple ax murderers.” Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.
Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border “have no constitutional rights at all.” Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.
After getting Stewart to agree that “detention violates due process, if there is an unreasonable delay in that detention,” Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart’s admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.
A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government’s supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it “sounds close to a concession.”
Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.
Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government’s power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit’s requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.
Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.
Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts’ jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.
Returning to Ginsburg’s earlier question about the 9th Circuit’s requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that “this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months.” Alito pushed back, asking, “Where does it say six months in the Constitution? Why is it six? Why isn’t it seven? Why isn’t it five? Why isn’t it eight?”
Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.
Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.
Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.
As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.
Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.
Recommended Citation: Kevin Johnson, Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants, SCOTUSblog (Oct. 4, 2017, 12:44 PM), http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/”
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We can only hope. As I’ve pointed out before, coercive detention and the building of the “American Gulag” are key parts of the Trump-Sessions-DHS “Gonzo” Immigration Enforcement Plan. I still don’t think the Supremes fully understand just how inhumane and coercive immigration detention is and how it’s used to “squeeze” the life out of a detainee’s due process rights. And, it starts with making it difficult or impossible to get a lawyer of your own choosing. You actually have to see what happens in a DHS Detention Center (many of them private, for profit enterprises, looking to minimize care, maximize profits, and keep the beds filled) to fully grasp what a mockery the detention process and the location of “Detained Courts” in Detention Centers or in far-distant Televideo Courtrooms makes of our system of justice, the U.S. Immigration Courts, and our promise of Constitutional rights.
“The Supreme Court’s liberal justices dominated discussion Tuesday about the prolonged detention of immigrants facing deportation, expressing concern about the government holding noncitizens indefinitely without a hearing.
At issue for the court is whether immigrants slated for deportation have the right to a bail hearing and possible release after six months if they are not a flight risk and pose no danger to the public.
The conservative justices were less vocal but expressed skepticism about whether the court should be setting firm deadlines for hearings in immigration cases.
A lawyer for the Justice Department told the high court that noncitizens — whether documented or undocumented immigrants — have no constitutional right to be in the United States.
The justices were taking a second look at the issue after an evenly divided court could not reach a decision last term and scheduled the case for reargument. With Justice Neil M. Gorsuch having joined the bench since then, he could cast the deciding vote.
[‘It will be momentous’: Supreme Court embarks on new term]
The case reached the high court after the U.S. Court of Appeals for the 9th Circuit ruled that immigrants fighting deportation are entitled to bond hearings if they have been held for more than six months. A lawyer for the American Civil Liberties Union, representing a group of noncitizens held for more than a year without a hearing, told the Supreme Court that the outcome of the case will affect thousands of people held in jaillike detention centers.
The outcome takes on heightened significance as President Trump has vowed to broadly increase immigration enforcement across the United States. Immigration arrests are up sharply since he took office in January, but deportations are down this year, in part because of a significant drop in illegal crossings on the southern border with Mexico.
The Supreme Court has previously held that undocumented immigrants are entitled to some form of due process when contesting their detention but also that “brief” detentions were allowed. Courts have interpreted those rulings in different ways, with the San Francisco-based 9th Circuit, for instance, requiring more procedural safeguards for those who would be held for months or even years.
The court’s liberals on Tuesday pressed Deputy Solicitor General Malcolm L. Stewart about why immigrants in detention centers are treated differently than criminal defendants, who automatically receive hearings to determine whether they remain locked up pending trial.
Justice Stephen G. Breyer noted that even a criminal suspect accused of “triple ax murders” is entitled to a bail hearing. “That to me is a little odd,” Breyer said, his voice rising.
Without time limits, Justice Sonia Sotomayor said, noncitizens languish in detention centers, sometimes for years. “That’s lawlessness,” she said.
During the previous argument last term, Justice Anthony M. Kennedy asserted that the constitutionality of the federal law was not at issue. But on Tuesday, he seemed more sympathetic to arguments in favor of a guaranteed timeline. He asked Stewart whether a lengthy delay because of a shortage of immigration judges was permissible and suggested that there should be a concretedeadline.
“Isn’t a bright line rule an easier way?” Kennedy asked.
Justice Elena Kagan followed up and asked whether a five-year backlog, for instance, was allowed. In response, Stewart said, an immigrant fighting deportation could always choose to return to his or her home country.
[Supreme Court considers whether those facing deportation can be held indefinitely]
The six-month deadline that the 9th Circuit set applies to a wide range of immigrants, from people detained after entering the United States for the first time to longtime legal residents. The case was brought by Alejandro Rodriguez, a lawful permanent resident who came to the country as an infant. The Department of Homeland Security started removal proceedings because of a conviction for drug possession and an earlier conviction for joyriding.
It can be done by Congress or by regulation, Alito said. But, he asked, “Where does it say six months in the Constitution?”
The case is Jennings v. Rodriguez.
Staff writers Maria Sacchetti and Robert Barnes contributed to this report.“
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OK, let’s get to the heart of the disingenuous argument by the Solicitor General in behalf of DHS. A respondent is entitled to due process hearing before he or she can be removed from the United States. But, according to the Government, the respondent has no Constitutional right to be in the United States for that Constitutionally-required hearing. And, as we know, Immigration Courts have backlogs of over 600,000 cases, with hearings often taking four or more years to schedule.
The SG’s position doesn’t even pass then”straight face” test. But, that doesn’t necessarily mean that the majority of Justices won’t agree with it!
“When Jennye Pagoada Lopez arrived at the U.S. border post of San Ysidro in July seeking political asylum, she showed agents ultrasound images of her pregnancy and told them she was bleeding and needed immediate medical attention.
But instead of taking her to the hospital, they detained her for more than a day before transferring her to the Otay Mesa Detention Center in San Diego.
It took two days to get a medical exam. Four days after that, she was informed that she had a miscarriage.
That was the account she gave in a sworn declaration to her lawyers.
“I was neglected, subjected to abusive conditions and denied medical treatment when requested,” she testified.
Pagoada is among ten women whose testimony was included in a complaint filed this week against the U.S. Department of Homeland Security by seven rights groups accusing immigration officials of improperly detaining pregnant women and failing to provide them with adequate medical care.
The complaint — made to the department’s inspector general and civil rights officer — alleges that the women suffered physical and psychological harm and asks the department to investigate the cases and report on what steps immigration authorities will take to enforce its policies on the detention and treatment of pregnant women.
“We are gravely concerned with the agency’s failure to abide by its own policy against detaining pregnant women, the detention conditions that have been reported by pregnant women in various detention facilities across the country, and the lack of quality medical care provided to women who are pregnant or have suffered miscarriages while in custody,” the complaint said.”
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Read the rest of Melissa’s report at the link.
The American Gulag intends to demean, dehumanize, demoralize, and discourage migrants like Jenny Pagoda Lopez.
But, the reality is that Lopez and others like her come out as human, brave, and courageous.
The truth is that all Americans are demeaned and dehumanized by unnecessary immigraton detention. It is a stain on our humanity, our professed values, and our national conscience that will not easily be washed away.
“JUST SAY NO” to politicos who support, actively or passively, this un-American regime!
“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.
How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”
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Read the rest of Dean Johnson’s analysis at the link.
This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.
The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).
And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.
Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month. And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”
Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.
Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!
Also, as I pointed out, in the “no real due process” world of the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!
Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.
But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.
“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.
As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.
But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.
“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”
Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.
In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well astake some pressure off thecurrently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.
According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.
“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.
Her three colleagues at the facility who had also been ordered there by the DOJwere no busier. One who had been sent to Otero previously told her the empty caseloads were normal.
“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”
***
On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”
The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.
But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centersas offering inadequate work for their visiting justices.
“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.
One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.
The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”
The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”
Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.
Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)
When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.
Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”
More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.
The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.
The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied thatthe deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year,and that more than 90 percent of cases by “surge” judges had led to deportation orders.
But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.
“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, istheadministration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.
***
Not everyone thinks sending judges to the border is a bad idea.
“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.
Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”
The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”
Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”
But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”
Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.
The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.
“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.
But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation.“They’re basically giving amnesty ironically to the non-detained docket.”
“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”
Sources from several areas of the country have informed me that there is a new, of course unpublished and unannounced, policy at DHS prohibiting ICE Assistant Chief Counsel who represent the agency in U.S. Immigraton Court from either negotiating bonds with private counsel or waiving appeals from U.S. Immigraton Judge decisions ordering release on bond.
This is just further evidence of the consequences of having ignorant proponents of “gonzo enforcement” in charge of both the DHS and the U.S. Immigraton Courts at the Department of Justice.
First, negotiated bonds are one of the key ways of making bond dockets move forward in an efficient manner in the U.S. Immigraton Courts. Bonds are initially sent by ICE Enforcement personnel, often on an arbitrary or rote basis. Without authority to negotiate bonds, particularly in advance, each bond hearing will take longer. Moreover, since bond cases take precedence in Immigraton Courts, longer bond dockets will further limit the already inadequate court time for hearing the merits of removal cases. With a growing backlog of over 600,000 cases, this appears to be an intentional effort to undermine due process in the Immigration Courts. Typically, when I served at the Arlington Immigration Court, at my encouragement, the parties agreed on most bonds in advance and neither party appealed more than 1%-2% of my bond decisions. Indeed, discussing settlement with the Assistant Chief Counsel in advance was more or less of a prerequisite for me to redetermine a bond.
Second, appealing all bond release decisions will also overburden the already swamped Appellate Division of the U.S. Immigration Courts, the Board of Immigraton Appeals (“BIA”). As in the Immigraton Courts, bond appeal cases at the BIA take precedence and will push decisions on merits appeals further back in line.
Third, Immigraton Judges usually only prepare a bond decision (known as a “Bond Memorandum”) in cases where a bond appeal is actually taken. Since that currently happens only infrequently, the process is manageable. However, if appeals are taken in more cases, and Bond Memoranda are “priorities,” Immigration Judges will have to spend more time writing or dictating Bond Memoranda, further limiting their time to hear cases on the merits. Moreover, by making it more burdensome to release individuals on bond, the system actually creates an inappropriate bias against releasing individuals on bond.
Fourth, yielding to inappropriate pressure from the “Legacy INS,” the Clinton DOJ gave Assistant Chief Counsel regulatory authority to unilaterally stay the release of a respondent on bond under an Immigraton Judge’s order provided that: 1) the Director originally had set “no bond;” or 2) the original bond was set at $10,000 or more. That means that the DHS can effectively neuter the power of the Immigraton Judge to release an individual on bond pending the merits hearing. By contrast, the respondent has no right to a stay pending a decision by the Immigraton Judge not to allow release, unless the BIA specifically grants a stay (which almost never happens in my experience).
Fifth, unlike petitions to review final orders of removal, which must be filed with the appropriate U.S. Court of Appeals at the conclusion of all proceedings, judicial review of bond decisions is sought in the U.S. District Courts. More decisions denying bonds have the potential to create new workload issues for the U.S. District Court.
Fifth, the individuals in the DHS most with the most knowledge and expertise in how the U.S. Immigration Courts work are the Assistant Chief Counsel. Stripping them of their authority to control dockets and settle cases, authority possessed and exercised by every other prosecutor in America, is both dumb and insulting. In what other system do the “cops” have the authority to overrule the U.S. Attorney, the District Attorney, or the State’s Attorney on matters they are prosecuting in court? It also makes the Assistant Chief Counsel job less professional and less attractive for talented lawyers.
In short, the Trump Administration is making a concerted attack on both common sense and due process in the U.S. Immigration Court system. The results are not only unfair, but are wasting taxpayer funds and hampering the already impeded functioning of the U.S. Immigraton Court system. Unless or until the Article III Federal Courts are willing to step in and put an end to this nonsense, the quagmire in the U.S. Immigration Courts will become deeper and our overall U.S. justice system will continue to falter.
We need an independent Article I Immigraton Court now!
