EUGENE ROBINSON @ WASHPOST – THE ST. LOUIS DOCKS AGAIN AT OUR SOUTHERN BORDER — TRUMP, SESSIONS & CO. WANT THE US TO FAIL THE MORAL TEST AGAIN – But, This Time It’s Anti-Hispanic Racism, Rather Than Anti-Semitism Behind Our Government’s Intentional Immorality — Trump & Sessions “are sincere in their desire to stanch the flow of Latino immigration — not, I strongly suspect, because of drugs or crime, but because they loathe the demographic and cultural change that is taking place.”

https://www.washingtonpost.com/opinions/the-immigrant-caravan-is-a-test-trump-wants-us-to-fail/2018/04/30/124b975c-4cb4-11e8-84a0-458a1aa9ac0a_story.html?noredirect=on&utm_term=.72fbc5bc8d11

The immigrant ‘caravan’ is a test. Trump wants us to fail.

By Eugene Robinson

The “caravan” of asylum-seeking migrants that has finally arrived at the U.S.-Mexico border is a test of American character and purpose — a test President Trump wants us to fail.

I put caravan in quotation marks because the group that reached Tijuana hardly qualifies for the term. Just a few dozen would-be entrants presented themselves at the Port of San Ysidro on Sunday — only to be told that U.S. immigration officials were too busy to attend to them. Another several hundred were reported to be in the general area, waiting their turn to attempt to cross the border.

Trump has spoken of these people as if they were some kind of rampaging horde. Attorney General Jeff Sessions has accused them of “a deliberate attempt to undermine our laws and overwhelm our system.” The truth is that this sort of thing happens every year: Would-be migrants seek safety in numbers as they make the long and perilous trek north through Mexico.

Sessions probably understands this context; Trump probably doesn’t. But I believe both are sincere in their desire to stanch the flow of Latino immigration — not, I strongly suspect, because of drugs or crime, but because they loathe the demographic and cultural change that is taking place.

While he and his administration were being appropriately roasted at the White House Correspondents’ Associationdinner on Saturday evening, Trump was at a rally in Michigan saying that our immigration laws are “corrupt . . . so corrupt” and that the motives of those who defend our nation’s traditional role as a haven for asylum seekers are political. “The Democrats actually feel, and they are probably right, that all of these people that are pouring across are going to vote for Democrats, they’re not going to vote for Republicans.”

They’re not going to vote for anybody, of course, since they’re not citizens. Truth doesn’t matter to Trump. But you knew that.

What seems to really drive the president crazy is that the United States remains a haven for those fleeing persecution. Trump laid out his complaint Saturday: “If a person puts their foot over the line, we have to take them into our country, we have to register them. We then have to ask them a couple of questions. Lawyers are telling them what to say. How unsafe they are. And once they say that, we have to let them go, to come back to court in like a year. Only one problem: They don’t come back, okay. That’s the end. Welcome to the United States.”

You will have noticed that missing from Trump’s rant is any sense of morality or mission.

There is a reason the law makes provision for those seeking asylum. In 1939, Congress rejected a bill that would have admitted 20,000 German Jewish children. Later that year, authorities refused to allow the St. Louis, a ship carrying about 900 German Jews, to dock in Miami; the Coast Guard sent out patrol boats to warn the ship away. The St. Louis was forced to return to Europe, and 254 of its passengers later perished during the Holocaust.

That shameful history led to changes in immigration policy that prohibit rejecting claims of asylum out of hand. The bar is high, but many of the Central American asylum seekers probably clear it.

In El Salvador, Honduras and Guatemala, the major threat comes from rampant gang violence. Boys are often offered a stark choice: Join a gang or be killed. Girls are threatened with rape. It is easy to say this is a problem local elected officials and police ought to solve, but government institutions are weak, and corruption is widespread. What choice does a family under imminent threat have but to flee? What would you do?

It is of course true that not every Central American who asks for asylum truly merits it. That’s why each case is examined and evaluated, with all the time needed to reach a proper determination — which is how the migrants now at the border must be handled, despite what Trump and Sessions might prefer.

To close our eyes and hearts to legitimate claims of persecution would be to repeat the shameful and tragic mistakes of the World War II era. If the subjects of Trump’s demagoguery were summarily denied entry, as he apparently would like, most would be forced to go home and some would be killed. That would be a terrible stain on the nation’s conscience.

I’m tempted to add that it would be a stain on Trump’s conscience as well, but it’s not clear that he has one.

Read more from Eugene Robinson’s archive, follow him on Twitter or subscribe to his updates on Facebook. You can also join him Tuesdays at 1 p.m. for a live Q&A.

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

I remember walking through the “St. Louis Exhibit” at the Holocaust Museum (on an EOIR-sponsored tour, no less, for a long ago and far away Annual Judges Conference — my how official racism & xenophobia have changed things) and asking myself how we could have done that to our fellow human beings.

Then, we had a “special session” explaining the catastrophic failure and cowardice of the German Judiciary during the Nazi rise to power. Judge after judge “adhered to the rule of law” even when those laws unfairly disenfranchised Jews, deprived them of their properly and lawful occupations, and eventually sentenced them to mass death!

I’ve now come to the unhappy realization that the St. Louis might have represented the norm, rather than the exception, to the reality of American democracy and its serious anti-Semitic and racially biased undertones. And, the actions of the corrupt & cowardly German judges of that era are certainly what Trump, Sessions, and their cronies are referring to when they disingenuously pontificate about “the rule of law” and looking for judges, Government officials, and lawyers who are committed to applying it in a biased and one-sided fashion

It’s their rule of law, as they consistently misconstrue it to protect only their favored political and racial groups, and misuse it “punish enemies” and to carry our their increasingly racist, White Nationalist agenda.

And yet 40% of our fellow countrymen are enthusiastically supportive of this heinous agenda. What’s wrong with them? Why ask ourselves how Nazism could have overtaken Germany when we’re in the process of trying to repeat that sordid history here? It’s pretty easy to see Hitler rallies of the 1930s in the Trump rallies of today. The same vicious disregard of both the truth and humanity, scapegoating, and an attacks on the true rule of law and on those who stand up for democracy, all wrapped in an appeal to false religious nationalism!

We’re failing as a nation on both a moral and a legal basis. It remains to be seen whether the resistance to Trump, his supporters, and his enablers will be sufficient to preserve democracy and human decency in America.

PWS

05-01-18

POST EDITORIAL SLAMS INSTITUTIONALIZED CHILD ABUSE BY TRUMP’S IMMIGRATION KAKISTOCRACY! — Human Rights Abuses “Business As Usual” Under Anti-Values Administration!

https://www.washingtonpost.com/opinions/the-trump-administration-traumatizes-children-in-the-name-of-scaring-migrants-away/2018/04/29/fe779b50-4a5a-11e8-827e-190efaf1f1ee_story.html?utm_term=.f866c5f999d8

The WashPost Editorial Board writes:

By Editorial Board April 29 at 7:46 PM

INFANTS, TODDLERS, tweens, teens — Trump administration officials are less interested in the age of an unauthorized child migrant than they are in removing the child from his or her parents as a means of deterring illegal border-crossers. That plan, first floated by White House Chief of Staff John F. Kelly last year when he was homeland security secretary, was widely regarded as so callous and such a radical departure from historical practice that it was unthinkable for any U.S. government.

If only.

In fact, not only has the idea of systematically separating undocumented children and parents gained currency among top officials determined to turn the tide on illegal entry, it’s already happening with increasing frequency. The Department of Homeland Security insists it has not adopted the practice as a matter of official policy — despite White House pressure to do so — but administration officials acknowledge that hundreds of children, including scores younger than 4, have been taken from their parents in the past few months.

By now it’s clear that there are few red lines President Trump is unwilling to cross in his crusade to rid the United States of undocumented immigrants. For Mr. Trump, having washed his hands of the “dreamers” — young migrants, most in their 20s, raised and educated in the United States after being brought here as children — it’s hardly a moral leap to inflict lasting psychological damage on younger children by taking them from their parents if it will further his goal of combating illegal immigration.

As reported by The Post’s Maria Sacchetti, top immigration and border officials have recommended that all parents who enter the country illegally with their children be detained and prosecuted, meaning the automatic separation of minors, who cannot legally be held in jails or detention centers designed for adults. Until recently, that was extremely uncommon; most parents who crossed the border with children would be released pending an immigration court hearing, or, in some cases, detained together in a facility designed for families. Prosecuting parents for illegal entry, a misdemeanor under federal law, has been exceedingly rare — specifically because of the harm it would cause blameless children.

In addition, many of the parents who would be prosecuted are eligible under U.S. law to seek and be granted asylum. That’s hardly a stretch for migrants from El Salvador and Honduras, beset by drug cartels, gang violence, domestic abuse and some of the world’s highest homicide rates. In the last three months of 2017, more than two-thirds of the 30,000 asylum seekers crossed into the country illegally — and it is far-fetched to exempt from prosecution only those who announce themselves as asylum seekers at legal ports of entry, as Homeland Security officials propose. Are desperate, impoverished people fleeing violence to be penalized because they enter the United States in the wrong place?

The United States has a legitimate interest in deterring illegal border-crossing. It is within its rights to detain and deport individuals and families who fail to make a persuasive case for asylum. But to splinter families and traumatize children in the name of frightening away migrants, many of whom may have a legitimate asylum claim, is not just heartless. It is beyond the pale for a civilized country.

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

Pretty ugly! Eventually our country, particularly future generations, will pay a high price for abandoning civilized values and human decency. The world is watching and the historical record is being made of the Trump Administration’s cowardly response to humanitarian tragedies and the folks who are enabling him and his White Nationalist cronies.

Get on the “right side of history!” Join the New ‘Due Process Army!”

PWS

04-30-18

RACISM IN AMERICA: WILL YOU OR YOUR FAMILY BE NEXT IN THE “NEW AMERICAN GULAG?” — Think It Can’t Happen Because You Are A US Citizen? — Guess Again! — DHS Has Detained Nearly 1,500 Citizens, & They Are Largely Indifferent To The Problem! Of Course It Will Get Worse Under Trump, Unless You’re A “White Guy!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8d20e42e-cd60-4330-b0f1-f808600e59b5

Paige St. John & Joel Rubin report for the LA Times;

Immigration officers in the United States operate under a cardinal rule: Keep your hands off Americans. But Immigration and Customs Enforcement agents repeatedly target U.S. citizens for deportation by mistake, making wrongful arrests based on incomplete government records, bad data and lax investigations, according to a Times review of federal lawsuits, internal ICE documents and interviews.

Since 2012, ICE has released from its custody more than 1,480 people after investigating their citizenship claims, according to agency figures. And a Times review of Department of Justice records and interviews with immigration attorneys uncovered hundreds of additional cases in the country’s immigration courts in which people were forced to prove they are Americans and sometimes spent months or even years in detention.

Victims include a landscaper snatched in a Home Depot parking lot in Rialto and held for days despite his son’s attempts to show agents the man’s U.S. passport; a New York resident locked up for more than three years fighting deportation efforts after a federal agent mistook his father for someone who wasn’t a U.S. citizen; and a Rhode Island housekeeper mistakenly targeted twice, resulting in her spending a night in prison the second time even though her husband had brought her U.S. passport to a court hearing.

They and others described the panic and feeling of powerlessness that set in as agents took them into custody without explanation and ignored their claims of citizenship.

The wrongful arrests account for a small fraction of the more than 100,000 arrests ICE makes each year, and it’s unclear whether the Trump administration’s aggressive push to increase deportations will lead to more mistakes. But the detentions of U.S. citizens amount to an unsettling type of collateral damage in the government’s effort to remove undocumented or unwanted immigrants.

The errors reveal flaws in the way ICE identifies people for deportation, including its reliance on databases that are incomplete and plagued by mistakes. The wrongful arrests also highlight a presumption that pervades U.S. immigration agencies and courts that those born outside the United States are not here legally unless electronic records show otherwise. And when mistakes are not quickly remedied, citizens are forced into an immigration court system where they must fight to prove they should not be removed from the country, often without the help of an attorney.

The Times found that the two groups most vulnerable to becoming mistaken ICE targets are the children of immigrants and citizens born outside the country.

Matthew Albence, the head of ICE’s Enforcement and Removal Operations, declined to be interviewed but said in a written statement that investigating citizen claims can be a complex task involving searches of electronic and paper records as well as personal interviews. He said ICE updates records when errors are found and agents arrest only those they have probable cause to suspect are eligible for deportation.

“U.S. Immigration and Customs Enforcement takes very seriously any and all assertions that an individual detained in its custody may be a U.S. citizen,” he said.

But The Times’ review of federal documents and lawsuits turned up cases in which Americans were arrested based on mistakes or cursory ICE investigations and some who were repeatedly targeted because the government failed to update its records. Immigration lawyers said federal agents rarely conduct interviews before making arrests and getting ICE to correct its records is difficult.

. . . .

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

Read the complete, very scary, story at the link.

Just more support for my position that DHS should not be given any additional agent positions until they account for how they are using (and in too many cases misusing) their current positions. If there is anything that the Trumpsters have clearly shown it’s their total disdain for the Constitution and laws of the U.S. except as they might advance and protect the parochial interests of Trump and his supporters.

There is little doubt that the Trump/Sessions/Miller/Homan crew see DHS as “Internal Security Police” — largely beyond anyone’s control — that they will use for partisan political purposes. The case for the ultimate abolition of ICE in its current form and leadership looks stronger all the time.

And, as usual these days, Congress is AWOL while this Administration undermines American democracy.

Now, a REAL Attorney General might be concerned about getting to the bottom of this lawless behavior affecting the rights of U.S. citizens. But, White Nationalist Jeff Sessions is too busy creating false narratives, demonizing immigrants, and undermining the rights of Hispanic Americans, LGBTQ Americans, and African-Americans to be bothered with fundamental violations of Constitutional rights particularly where the victims aren’t White Guys. Jim Crow lives! And all of us should be worried about where he will strike next.

PWS

04-29-18

AMERICAN INJUSTICE: ADVOCATES COMPLAIN ABOUT US IMMIGRATION JUDGE V. STUART COUCH’S BIAS AGAINST CENTRAL AMERICAN WOMEN SEEKING ASYLUM – APPEALS BOARD AGREES, FINDING COUCH’S RULINGS “CLEARLY ERRONEOUS” IN MANY CASES – Now They Fear That Judge Couch Has A “Kindred Spirit” In The Overtly Xenophobic Jeff Sessions!

Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court

By: Tal Kopan, CNN

Jeff Sessions recently used his special authority as attorney general to review an asylum case that could have sweeping implications for how the US treats immigrants fleeing domestic violence.

Newly released records now show that the case he handpicked, which involves a Central American woman fleeing domestic abuse from her ex-husband, comes from a judge who has been repeatedly rebuked by appellate judges for his multiple rejections of asylum claims from victims of domestic abuse.

Advocates and immigration attorneys fear that Sessions could be using the case as an opportunity to reverse case law that has protected Central American women fleeing violence and sexual assault from husbands by granting them asylum in the US.Stuart

Couch, an immigration judge in Charlotte, North Carolina, has sought to justify denying such women the right to stay in the US in multiple cases, even with the appellate body repeatedly ruling that his findings were “clearly erroneous,” according to records released after a Freedom of Information Act request.

Couch’s decision in the case Matter of A-B-, a convention of naming cases in immigration court that protects the individual’s identity, is a rare opinion that Sessions has referred to himself for review. Sessions has been using a little-known authority to refer immigration cases to himself for review, allowing him to almost single-handedly direct how immigration law is interpreted in this country.

In reviewing Couch’s decision, Sessions invited interested parties to comment on the notion of whether being the victim of a crime can count for asylum, a complicated aspect of asylum law.

The case was initially kept secret by the Justice Department and immigration courts on privacy grounds, but was made public by immigration attorneys as a domestic violence case. Input on the case was due to Sessions on Friday.

It was also later revealed that Sessions decided to consider the case over the objections of the Department of Homeland Security, which had asked him to hold off on diving into the case until the Board of Immigration Appeals, the immigration courts’ appellate body, decided on a request from Couch to take the case back up themselves. Sessions denied DHS’s request.

The Department of Justice declined to comment on why or how Sessions chose the case, and it’s not known how he will rule. When Sessions initially referred himself the case, a department official said he was considering it “because of a lack of clarity in the court system on the issue.”

More on Couch’s decisions: http://www.cnn.com/2018/04/28/politics/jeff-sessions-immigration-courts-domestic-violence-asylum/index.html

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

You should read Tal’s entire article for a profile of just how biased Judge Couch — the second most reversed Judge among hundreds in the Immigration Courts — is in asylum cases. He had 58 cases reversed by the BIA just in 2017, while piling up an “asylum denial rate” 26% above the national average!

And, remember that this “isn’t the Ninth Circuit” by any stretch of the imagination. The BIA is a considered a conservative tribunal with a strong predilection to rule for the DHS to begin with!

I’m glad that the anti-asylum bias that runs through too much of today’s Immigration Court system, and is actually fanned and encouraged by Sessions, is finally being exposed. Even if Congress won’t solve this glaring problem by removing these Courts from the DOJ and creating an independent Immigration Court, with a merit-based hiring system, I hope that the Article III reviewing courts are getting the picture that much of what they are getting from EOIR in the area of asylum denials is the product of an intentionally unfair and biased system.

In this outrageous example, Matter of A-B-, the BIA was actually quite properly trying to “rein in” Judge Couch. Rather than encouraging justice, Sessions actually interfered with the BIA’s actions, even though neither the BIA nor any party had requested his review. What kind of “court system” allows a law enforcement official to control the results? Sounds like something directly out of the DOS Country Report on a Third World Dictatorship!

Judge Couch actually was appointed during the Obama Administration, illustrating the widespread and chronic nature of the problem of anti-asylum biased judging at EOIR. The Obama Administration was not accused of the overtly politicized hiring engaged in by the Bush Justice Department.

Nevertheless, from a statistical standpoint, the opaque, closed, and glacial (two-year average) Obama DOJ selection system was biased in favor of attorneys from government backgrounds and against those with experience representing asylum applicants by an astounding 9 to 1 ratio! Many believe this intentionally produced a BIA and an Immigration Court that would more or less “go along to get along” with construing the law and the facts against asylum applicants from countries considered to be “enforcement priorities” by the Obama Administration.

It’s time to put an end to this charade of justice and Due Process in our Immigration Courts. We need an independent Article I U.S. Immigration Court with a merit-based selection system. If not, we need a “helpful intervention” by the Article III Courts to end this chronically unfair and dysfunctional administration of justice by the Department of Justice!

PWS

04-28-18

CALL OUT THE CAVALRY, WE NEED REINFORCEMENTS! – “CARAVAN” OF A FEW HUNDRED MEEK REFUGEE WOMEN & CHILDREN REACH S. BORDER, THREATEN TO EXERCISE LEGAL RIGHTS TO APPLY FOR ASYLUM, AS TRUMP, SESSIONS, NIELSEN, HOMAN, & CO. COWER IN FEAR WITHIN “FORTRESS AMERICA” — Trump Administration Views Individual Constitutional Rights As “Dangerous Loopholes” & “Threats To National Security” That Must Be Eliminated – “Grandfathering” Sought For Current & Former Trump Officials, Friends, Family Who Might Need To Assert Fifth Amendment Right Against Self-Incrimination!

https://www.washingtonpost.com/world/national-security/at-the-us-border-a-diminished-migrant-caravan-readies-for-an-unwelcoming-reception/2018/04/27/7946a154-4a52-11e8-827e-190efaf1f1ee_story.html?utm_term=.cd296045d4c6

Nick Miroff reports for the Washington Post:

TIJUANA, Mexico — The American president, a former real estate mogul, does not want Byron Garcia in the United States. But the Honduran teenager was too busy building his own hotel empire this week to worry much about that.

Vermont Avenue and Connecticut Avenue were his. Now he was looking to move up-market.

The mini-Monopoly board on the dusty floor of the migrant shelter was small, but it fit well in the small space beside the tents. His older sister, Carolina, rolled a 2 and landed on Oriental Avenue.

“That’ll be $500,” said Garcia, 15, gleefully extending his hand. “I love this game!”

Garcia is coming to America on Sunday. Or maybe not. His mother, Orfa Marin, 33, isn’t sure it will be a good day to walk up to the border crossing and tell a U.S. officer that her family needs asylum. She knows President Trump wants to stop them.

Marin and her three children are among the 300 or so remaining members of the migrant caravan who have arrived here at the end of a month-long geographic and political odyssey, a trip that has piqued Trump’s Twitter anger and opened new cracks in U.S.-Mexico relations.

Central American migrant children play Monopoly at the Movimiento Juventud 2000 shelter on April 26, 2018 in Tijuana, Mexico. (Carolyn Van Houten/The Washington Post)

The organizers of the caravan say they are planning to hold a rally Sunday at Friendship Park, the international park where a 15-foot border fence splits the beach. From there, activists and attorneys plan to lead a group of the migrants to the U.S. port of entry at San Ysidro, Calif., where they will approach U.S. Customs and Border Protection officers and formally request asylum.

. . . .

Trump has ordered U.S. soldiers to deploy and Homeland Security officials to block the migrants. But the diminished version of the caravan that has arrived here, mostly women and children, has only underscored its meekness.

Migrant families arrive on a bus at the Ejercito de Salvacion shelter on April 26, 2018 in Tijuana, Mexico after driving from Mexicali, Mexico. (Carolyn Van Houten/The Washington Post)

The families are drained after weeks of travel, coughing children and pinto beans. They have crowded here into shelters in the city’s squalid north end, where the sidewalks are smeared with dog droppings and skimpily dressed women hand out drink promotions among the strip clubs and brothels. The tall American border fence is two blocks away.

Children play on the sidewalks outside the shelters, the boredom broken whenever a car with donations arrives to drop off clothes and toys.

Central Americans migrants in Mexico have long been treated as a kind of renewable natural resource, ripe for exploitation by thieves, predators and politicians. The geopolitical importance attached to this particular group was a sign to many here that the U.S. president had recognized an opportunity, too.

“We’re not terrorists or bad people,” Marin said.

Regardless of its size, Trump officials have measured this caravan in symbolic terms, as an egregious example of the “loophole” they want to shut and an immigration system whose generosity is being abused, they say, by hundreds of thousands of Central Americas trying to dupe it.

. . . .

“These people have no option but to seek refuge in another country, and they have every right to seek asylum, they have decided to face the consequences and to be strong in demanding what is their right,” said Leonard Olsen, 26, a law student and one of several caravan organizers from the United States. He wore a tattered Philadelphia Eagles cap and arrived in Tijuana on Thursday with a busload of women and children.

. . . .

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

I can understand why guys like Trump, Sessions, Nielsen, and Homan would be scared by mothers with talented kids who show the kind of courage, honesty, humanity, and respect for law that they themselves so conspicuously lack.

Without 5th Amendment protections, who would join the Trump Administration?

PWS

04-28-18

TRUMP ADMINISTRATION’S EXISTENTIAL THREAT TO NATIONAL SECURITY: Bogus Focus On Harmless Migrants Exercising Legal Rights To Apply For Asylum While Defunding State & Local Response Programs & Ignoring Real Security Threats!

Lawmakers question Trump’s Homeland Security chief over focus on immigrant caravan, border wall

By: Tal Kopan, CNN

The secretary of homeland security faced sharp questioning about agency priorities from lawmakers on both sides of the aisle at a House Homeland Security Committee hearing Thursday, with many expressing deep concerns about whether the Trump administration is properly promoting Americans’ safety.

Democrats in particular questioned Kirstjen Nielsen about the administration’s prioritization of immigration enforcement and the building of a border wall while also seeking to cut funding for state and local governments to prepare for and respond to security threats.

“Tell us how cutting this kind of funding helps America be safer,” demanded Rep. Bill Keating, D-Massachusetts.

The top Democrat on the committee, Mississippi Rep. Bennie Thompson, had sharp words for Nielsen in his opening remarks, accusing the department of intentionally attacking non-dangerous immigrants as a distraction.

“Based on your press releases this week, you would think the most important homeland security problem facing the nation is a handful of Central Americans moving through Mexico,” Thompson said, referring to a caravan of mostly women and children asylum seekers that takes place every year to call attention to the plight of Central Americans. “That does not make it so. … Better to distract the American people from the very real issues facing the department and perhaps from the President’s own problems too.”

In one particularly sharp exchange, Florida Democratic Rep. Val Demings, a former chief of police in Orlando, pressed Nielsen on whether she prioritized the wall and immigration over helping local communities.

More: http://www.cnn.com/2018/04/26/politics/caravan-border-wall-kirstjen-nielsen-hearing/index.html

More: http://www.cnn.com/2018/04/26/politics/caravan-border-wall-kirstjen-nielsen-hearing/index.html

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

As I’ve said before, Nielsen is an intellectual lightweight, sycophant, and White Nationalist enabler. She proves it almost every time she opens her mouth in public. Her disingenuousness and toadyism make her a threat to our security every day she is in office.

Fortunately, there appear to still be enough professional civil servants in the ranks of DHS somewhere to have averted a national security disaster to date. But, if we survive this Administration, and it’s toxic focus on immigration to the exclusion of real law enforcement and national security problems, it certainly will be in spite of, not because of, folks like Nielsen.

PWS

04-27-18

PUBLIC INVITED TO ABA COMMISSION ON IMMIGRATION PANEL ON US IMMIGRATION COURT REFORM: FRIDAY, MAY 4, 2018 9:00 AM – 10:30 AM

final_may_4_program_flyer.authcheckdam

Featured Panelists:

(Ret.) Immigration Judge Paul Schmidt, Adjunct Professor of Law, Georgetown University Law

Center Heidi Altman, Policy Director, National Immigration Justice Center James R. McHenry, Director, Executive Office for Immigration Review Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

James R. McHenry, Director, Executive Office for Immigration Review

Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

Karen Grisez, Special Advisor to the ABA Commission on Immigration; Public Service Counsel, Fried Frank LLP

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

This event is FREE & OPEN TO ALL. I believe there will be a “public comment” opportunity. So, this is your chance to weigh in on the US Immigration Court “Train Wreck” and the Attorney General’s recent actions!🚂🚂🚂🚂🚂🚂🚂🚂🚂

Seating might be limited, and I would expect interest to be high. So, I strongly recommend arriving early!

PWS

04-25-18

TAL @ CNN: DENYING DUE PROCESS IN U.S. IMMIGRATION COURTS — Sessions’s Plans & Actions Contravene Many Key Recommendations Of Recent Independent Internal Evaluation – Feuding With Judges, Suspending Legal Orientation Program, Establishing Evaluations Based On “Quotas,” Detailing Judges To Border Detention Centers, Restricting Administrative Closing, Increasing Use Of Televideo Hearings, Emphasis On Increasing Removals Over Due Process All Run Counter To Recent Recommendations!

http://www.cnn.com/2018/04/23/politics/immigration-courts-justice-department-report/index.html

Justice report’s findings clash with Sessions’ actions

By Tal Kopan

Attorney General Jeff Sessions has made overhauling the chronically backlogged immigration courts a top priority — but some of his moves seem to run counter to recommendations in a Justice Department-commissioned report made public on Monday.

While some of the recommendations, such as increasing staffing, have been part of his efforts, other steps — such as requiring judges to process a target amount of cases — run contrary to the study’s suggestions.

The report was written by consulting firm Booz Allen Hamilton last April after a yearlong analysis commissioned by the Justice Department’s immigration courts division. A redacted version was made public Monday as the result of a Freedom of Information Act request by the American Immigration Lawyers Association and American Immigration Council.

The report looks at the chronic inability of the immigration courts to keep up with the number of cases before them. Cases related to immigration status are handled in a court system separate from the typical criminal and civil courts in the US — a system that is run entirely by the Justice Department and in which the attorney general effectively functions as a one-man Supreme Court.

Because cases can take years to finish, undocumented immigrants can end up living and building lives in the US as they await a final decision on whether they are legally allowed to stay in the US — something the Trump administration has cited as a driver of illegal immigration.

The Booz Allen Hamilton analysis identifies a number of issues that contribute to the backlog, including staffing shortages, technological difficulties and external factors like an increasing number of cases.

Sessions has worked to hire more immigration judges and has ordered other upgrades like the use of an electronic filing system, as the report recommends.

But the American Immigration Lawyers Association expressed concern about a number of other recommendations that seemed ignored or on which opposite action was taken.

Responding to the report, a Justice Department official who requested not to be named said that the efforts of the department are “common-sense.”

“After years of mismanagement and neglect, the Justice Department has implemented a number of common-sense reforms in the immigration court system, a number of them address these issues and we believe that focusing our efforts on these reforms has been an effective place to start,” the official said.

The report’s recommendations include a performance review system for judges, who are hired and managed by the Justice Department, that “emphasizes process over outcomes and places high priority on judicial integrity and independence,” including in dialogue with the union that represents immigration judges. The Justice Department recently rolled out a performance metrics system, though, that requires judges to complete a certain number of cases per year and sets time goals for other procedural steps along the way, which immigration judges have strongly opposed as jeopardizing the ability of judges to make fair, independent decisions.

In a call with reporters, AILA representatives and a retired immigration judge argued that while the report doesn’t explicitly reject a quota system, it’s clear that putting one in place is contrary to the recommendation. They say that judges who are fearful of their job security and opportunity for advancement may be pressured to speed up hearing cases at the expense of due process for the immigrants, which could skew the outcome of the case.

A Justice Department official said the agency rejects the notion of a “false dichotomy” that improving efficiency sacrifices due process and said the agency has also put in place court-based metrics that lend itself to the recommendation of the report.

In another example, the report recommends that the Justice Department consider expanding legal orientation programs for immigrants and increasing their access to attorneys, so they can better navigate the system. The Justice Department recently put on hold a legal advice program for immigrants in the courts, saying it needed to be reviewed, though audits in the past had consistently shown it was productive and had saved the government money long-term. Officials say they may reinstitute the program if the audit shows it is effective.

The report also recommends limited use of video hearings, saying judges are stymied by technical difficulties and also are less able to read the subtle cues and nonverbal communications of witnesses and people involved in the hearings. Sessions’ immigration courts plan includes expanding the use of video hearings.

In another example, one of Sessions’ first moves in taking office was to send a number of judges to the border on a temporary assignment to handle cases there. The report says temporary assignments should be avoided, as they create more delays when judges have to catch up on their workloads back home.

The report also recommends administratively closing cases if they are being adjudicated in some other venue, like a visa petition or another court case. The Trump administration has sought to curtail the administrative closing of cases.

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

DOJ’s ridiculous claim that Sessions’s actions are “common sense” is refuted by virtually everyone with expertise or true understanding of the Immigration Court system including those working in it, those stuck in it, and even ICE!

There can be no effective, Due Process oriented, “actual common sense” Immigration Court reforms so long as Jeff Sessions controls those courts.

PWS

04-23-18

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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

Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

IT TOOK MANY YEARS AND LOTS OF EFFORT, BUT RESPONDENTS FINALLY WON ONE @ THE BIA — ON STALKING — Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

Sanchez3924

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

BIA HEADNOTE:

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, MALPHRUS

OPINION BY: JUGE JOHN GUENDELSBERGER

DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM MAJORITY:

Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.

We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the

statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.

Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.

KEY QUOTE FROM DISSENT:

The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.

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

I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”

My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.

The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!

He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.

PWS

04-20-18

MULTI-TALENTED TAL @ CNN TAKES US TO THE S. BORDER IN PICTURES & WORDS!

http://www.cnn.com/2018/04/19/politics/secretary-nielsen-dhs-border-fence-wall-immigration/index.html

Snapshots from the US-Mexico border

By Tal Kopan, CNN

Updated 6:55 PM ET, Thu April 19, 2018

Here are Tal’s pictures. For whatever technical reason, you’ll have to go to the original article at the link to get the captions that go with them!

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

Wow! As those of you who read “Courtside” on a regular basis know, I’m a HUGE FAN of Tal’s timely, incisive, concise, and highly accessible reporting. I feature it on a regular basis. I’ve also seen her do a great job on TV and video. But, until now, I didn’t know about her skills as a photojournalist. Tal can do it all!

Also, as my colleague Judge and Super-Blogger Jeffrey Chase pointed out in one of his recent comments on this blog, pictures play an essential role in understanding the immigration saga in America.

Been there, done that in my career. Takes me back to the long past days of riding three wheelers, helicopters, Patrol Cars, looking through infrared night scopes, and even accompanying foot patrol during my days in the “Legacy INS General Counsel’s Office.” (Most often on the border south of San Diego.) We actually took the Trial Attorneys and some of the Assistant U.S. Attorneys prosecuting our cases with us to show them what it was really like at the “ground level.”

Actually doesn’t look all that much different decades later. What is painfully clear is that walls, fences, helicopters, detectors, unrealistically harsh and restrictive laws, and more detention centers (the “New American Gulag”) will never, ever “seal” our borders as some immigration hard-liners insist is possible.

At best, we can control, channel, and regulate the flow of migrants, but not halt it entirely. Human migration was taking place long before the U.S. became a nation, and I daresay that it will continue as long as there are humans left on earth. To think that walls, troops, concentration camps, harsh laws, and prisons are going to halt it completely is a mixture of arrogance and ignorance.

So, rather than pouring more money down the drain on the same “strategies” that have been failing for decades, a “smart” border control policy would involve:

More realistic and generous interpretations of our refugee and asylum laws that should include most of those fleeing for their lives from the Northern Triangle;
A much larger and more “market based” legal immigration system for permanent and temporary migrants that would meet the legitimate needs of U.S. employers and our economy while making it attractive for most prospective workers and employers to use the legal visa system rather than the “black market” of undocumented entry;
A larger and more robust refugee processing program for Northern Triangle refugees so most would be screened and documented outside the U.S.;
Cooperation with the UNHCR and other stable countries in the Western Hemisphere to distribute the flow of long-term and temporary refugees in an equitable manner that will help both the refugees and the receiving countries;
Working with and investing in Mexico and Northern Triangle countries to address and correct the conditions that create migration flows to the Southern Border.
Providing lawyers for asylum applicants who present themselves at the Southern Border so that their claims for protection (which actually go beyond asylum and include protection under the Convention Against Torture) can be fairly, correctly, and efficiently determined in an orderly manner in accordance with Due Process.

No, it’s unlikely to happen in my lifetime. But, I hope that future generations, including the members of the “New Due Process Army,” will find themselves in a position to abandon past mistakes, and develop the smart, wise, generous, humane, realistic, and effective immigration and refugee policies that we need to keep our “nation of immigrants” viable and vitalized for centuries to come. Until then, we’re probably going to have to watch folks repeat variations of the same painful mistakes over and over.

PWS

04-19-18

“GANG OF 18” RETIRED IMMIGRATION JUDGES WEIGHS IN BEFORE SENATE JUDICIARY ON SESSIONS’S ABUSES OF DUE PROCESS & NEED FOR ARTICLE I COURT — NAIJ PRESIDENT JUDGE A. ASHLEY TABADDOR PRESENTS STUNNING EVIDENCE OF SESSIONS’S ALL OUT ATTACK ON JUDICIAL INDEPENDENCE, PROFESSONALISM, & FAIRNESS TO THOSE APPEARING BEFORE THESE COURTS!

With the help of the amazing Laura Lynch, Senior Policy Counsel at AILA (picture above), here’s the statement filed by our (ever-growing) “Gang of 18” Retired Judges:

Statement of Retired Immigration Judges and former members of the Board of Immigration Appeals

Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration

Hearing on “Strengthening and Reforming America’s Immigration Court System”

April 18, 2018

This statement for the record is submitted by retired immigration judges and former members of the Board of Immigration Appeals (BIA). Drawing upon our many years of combined service, we have an intimate knowledge of the operation of the immigration courts. Immigration judges and Board members are supposed to act as neutral arbiters; however, they are considered to be employees of the nation’s chief law enforcement agency, the U.S. Department of Justice (DOJ), rather than true judges. The DOJ is run by politically appointed law enforcement officials, making EOIR vulnerable to improper political pressures. In order to restore public confidence in the immigration court system and to insulate EOIR from political pressure, the immigration court system must be removed from the DOJ to an independent article I court structure that focuses on due process and efficient court administration.

For over a decade, the immigration courts have been severely underfunded when compared to the

budget increases that Congress has provided to immigration enforcement. EOIR has been unable to keep pace with the growing number of removal proceedings. The Trump administration has further contributed to this backlog, announcing broad new immigration enforcement priorities in January of 2017 that make almost everyone who is undocumented a priority for arrest. With the immigration court case backlog approaching 700,000 cases, we can all agree that our immigration court system is in crisis.

Instead of working to improve the immigration court system, DOJ and EOIR have issued policies that will threaten the integrity and independence of the immigration courts.

Imposing case completion quotas

On March 30th, the Director of EOIR announced that immigration judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregard due process. An immigration judge should be evaluated based on the quality of her decisions, not the quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. Poor decisions will also directly result in more appeals to the BIA and the Courts of Appeal, and more remands, causing more delays and running contrary to the goals of the Attorney General (AG).

Curbing use of docketing management tools such as use of continuances

On July 31, 2017, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. This policy along with the imposition of case completion quotas heightens concerns that cases will be rushed through the immigration court system. Continuances are necessary in a

AILA Doc. No. 18041830. (Posted 4/18/18) 2

variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by the U.S. Citizenship Immigration Services (USCIS) on a pending application. Examples of such applications are “U” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to U.S. citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. But the result of those applications may be outcome determinative in removal proceedings. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. That is not justice; it seems more like an assembly line. Circuit courts will not excuse due process violations based on immigration judges having to meet arbitrary completion goals.

The AG is taking dramatic steps to rewrite immigration law.

The AG recently utilized his authority to certify two BIA decisions to himself for review to examine a judges’ authority to utilize docket management tools including use of continuances and administrative closure. As described in our amicus brief, immigration judges have inherent powers (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) delegated to them by Congress, and not the Attorney General. Such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Both the issuance of continuances and administrative closure are important docket management tools that allow judges to manage high caseloads. The certification of these cases signals the AG’s intent to massively curtail judicial independence. The solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Additional Resources from Retired Immigration Judges and Former BIA Members

● Jeffrey S. Chase, The Need For an Independent Immigration Court, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Aug. 17, 2017), https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court.

● Jeffrey S. Chase, IJs, Tiered Review and Completion Quotas, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Nov. 9, 2017), https://www.jeffreyschase.com/blog/2017/11/9/ijs-tiered-review-and-completion-quotas.

● Bruce Einhorn, Jeff Sessions wants to bribe judges to do his bidding, Washington Post, (Apr. 5, 2018), https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.758f0b92e2e6.

● John F. Gossart, Time to fix our immigration courts, The Hill, (Feb. 26, 2014), http://thehill.com/blogs/congress-blog/judicial/199224-time-to-fix-our-immigration-courts.

● Lory Rosenberg, Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), ILW, (Mar. 6, 2018),http://blogs.ilw.com/entry.php?10427-Much-Sound-and-Fury-Matter-of-E-F-H-L-27-I-amp-N-Dec-226-(A-G-2018)

● Paul Wickham Schmidt, Retired Immigration Judge and Former Chairman of the BIA Responds to Implementation of Production Quotas, Immigration Courtside, (Apr. 4, 2018), http://www.aila.org/infonet/retired-immigration-judge-and-former-chairman

AILA Doc. No. 18041830. (Posted 4/18/18) 3

● Paul Wickham Schmidt, We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?, Immigration Courtside, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/.

● Robert Vinikoor, Take it From a Former Immigration Judge: Quotas Are a Bad Idea, Minsky, McCormick & Hallagan, P.C. Blog, (Apr. 12, 2018), https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/.

We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.

Contact with questions or concerns: Jeffrey Chase, jeffchase99@gmail.com.

Sincerely,

Honorable Steven R. Abrams

Honorable Patricia L. Buchanan

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable George T. Chew

Honorable Bruce J. Einhorn

Honorable Cecelia M. Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Lory D. Rosenberg

Honorable Susan Roy

Honorable William Van Wyke

Honorable Paul W. Schmidt

Honorable Polly A. Webber

List of Retired Immigration Judges and Former BIA Members

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.

The Honorable Patricia L. Buchanan served as an Immigration Judge in New York City from June 2015 to July 2017, having responsibility for a detained docket for more than a year and a half. From December 2003 to October 2014, she served in various roles within the Immigration Unit of the Civil Division of the United States Attorney’s Office for the Southern District of New York, including

AILA Doc. No. 18041830. (Posted 4/18/18) 4

Assistant United States Attorney and Chief of the Immigration Unit. From 2001 to 2003 she served as a trial attorney in the Department of Justice, Civil Division, Office of Immigration Litigation in Washington, DC. From 1996 to 2001, she served as a trial attorney on a detained docket with the former Immigration and Naturalization Service in the New York District. During a significant period of her time as a federal court litigator, she authored a monograph analyzing hundreds of precedent decisions on process and procedural issues (including rights and limitations to continuances) in removal proceedings and presented at numerous DOJ and DHS trainings on due process issues. Prior to joining the Department of Justice, she worked as a Temporary and Volunteer Attorney at Westchester/Putnam Legal Services from 1995 to 1996 and worked at Mid-Hudson Legal Services from 1991 to 1995.

The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

Honorable George T. Chew

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014

AILA Doc. No. 18041830. (Posted 4/18/18) 5

and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Elizabeth A. Lamb was appointed to the immigration bench in 1992. Previously she served as EEO counsel to the St. Regis paper company and was of counsel to Catholic Charities in New York City for immigration matters. Before law school she served as press secretary for then Congressman Hugh L. Carey and later for commissioner Bess Myerson at the New York City Department of Consumer

AILA Doc. No. 18041830. (Posted 4/18/18) 6

Affairs. Her first job after graduation from law school was for the New York State Department of Criminal Justice Services. She retired on January 6, 2018.

The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable William Van Wyke

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant

AILA Doc. No. 18041830. (Posted 4/18/18) 7

Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

AILA Doc. No. 18041830. (Posted 4/18/18

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

It was a great honor and privilege to be part of this distinguished group. To our other retired colleagues out there, we’re always more than happy to have join the group an continue the fight to “guarantee fairness and due process to all.” (Actually, the long-forgotten mission of EOIR). It also provides a great opportunity to chat online with each other and catch up on some of the amazing “post-bench” achievements of our colleagues.

And, once again, that’s to Laura Lynch without whose support, skill, and expertise, this effort could never have happened.

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

Here’s the detailed and deeply disturbing statement of Judge A. Ashley Tabaddor, of the United States Immigration Court in Los Angeles, CA, in her capacity as President of the National Association of Immigration Judges (“NAIJ”). It’s impossible to read Judge Tabaddor’s heartfelt words without being totally outraged by the all-out assault on fairness to, and the human dignity of, those seeking justice from the Immigration Courts and those trying to help them present their cases; the intentional demeaning and de-professionalization of U.S. Immigration Judges struggling to provide impartial justice in a system intentionally rigged against it; the patently dishonest attempt to shift blame for the Immigration Court’s current dysfunction from the politicos who caused it to their victims; and the all out disrespect for truth, the law, ethics, our Constitution, and basic human rights and decency shown by Jeff Sessions.

Statement of

Judge A. Ashley Tabaddor, President

National Association of Immigration Judges

April 18, 2018

Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee

Hearing on “Strengthening and Reforming America’s Immigration Court System”

INTRODUCTION

I am Ashley Tabaddor, President of the National Association of Immigration Judges (NAIJ), and an Immigration Judge.1 For the past twelve years I have served in the Los Angeles Immigration Court. My current pending case load is approximately 2000 cases. Chairman Cornyn, Ranking Member Durbin and members of the Subcommittee, thank you for the opportunity to testify before the Subcommittee.

1 I am speaking in my capacity as President of the NAIJ and not as employee or representative of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent my personal opinions, which were formed after extensive consultation with the membership of NAIJ.

I am pleased to represent the NAIJ, a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against 2

unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

I am here today to discuss urgently needed Immigration Court Reform and the unprecedented challenges facing the Immigration Courts and Immigration Judges. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs. I will be focusing my discussion on the inherent structural defect of the Immigration Court system, the Department of Justice’s (DOJ) misguided “solutions” to the current court backlog, and proposed solutions to the challenges facing the court, including the only enduring solution: restructuring of the Immigration Court as an independent Article I Court.

THE FUNDAMENTAL FLAW

⦁ The Placement of a Neutral Court in a Law Enforcement Agency

The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system and may well lead to the virtual implosion of this vital Court.

Immigration Judges make the life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 330 Immigration Judges in the United States are responsible for adjudicating almost 700,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. The proceedings are considered “civil” cases, in contrast to “criminal” cases. Thus, people are not provided attorneys and must either pay for one, find a volunteer, or represent themselves. Last year, approximately 40 percent of the individuals who appeared in our courtrooms represented themselves, a figure that rises to 85 percent when only detained cases are considered. Further complicating the situation, only 15 percent of immigration cases are conducted in the English language. Finally, our courtrooms and systems lack modern technology and unlike federal courts, the Immigration Courts still rely on paper records.

But here’s the core of the problem: Immigration Judges wear two hats. On the one hand, we are statutorily recognized as “Immigration Judges,” wear judicial robes, and are charged with conducting ourselves consistently with canons of judicial ethics and conduct, in order to ensure our role as impartial decision-makers in the cases over which we preside. In every sense of the word, on a daily basis, when presiding over our case in our courts, we are judges: we rule on the admissibility of evidence and legal objections, make factual findings and conclusions of law, and 3

decide the fate of thousands of respondents each year. Last year, our decisions were final and unreviewed in 91% of the cases we decided.

In addition, and in contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

At first glance, this may not seem too damaging; after all, our government structure is resilient and must respond to changes demanded by the public. However, this organizational structure is the fundamental root cause of the conflicts and challenges that have plagued the Immigration Court system since its inception and now threatens to cripple it entirely because the very mission of a neutral court is to maintain balance despite political pressures.

⦁ Politicization of the Immigration Courts

Examples of where this conflict of interest has led to the infringement on the independence of the Immigration Court are numerous throughout the past decades and under administrations of both political parties. It is no secret that the DHS, whose attorneys appear before the Court, regularly engages in ex-parte communication with the DOJ. On the macro level, these communications have directly led to the use of the Immigration Court system as a political tool in furtherance of law enforcement policies.

One common use of the Courts as a political tool has been the incessant docket shuffling in furtherance of various law enforcement “priorities.” For example, during the last administration, the mandated “surge” dockets prioritized recent arrivals, such as unaccompanied minors and adults with children, over pending cases before the Court. Similarly, this administration uprooted approximately one third of all Immigration Judges in the 2017 calendar year to assign them temporarily to “border courts” to create the “optics” of a full commitment to law enforcement measures, even at the expense of delaying hundreds of cases at each home. The DOJ claimed that the border surge resulted in an additional completion of 2700 cases. This number is misleading as it does not account for the fact that detained cases at the border are always completed in higher numbers than non-detained cases over a given period. Thus, the alleged 2700 additional completions was a comparison of apples to oranges, equating proceedings completed for those with limited available relief to those whose cases by nature are more complicated and time consuming as they involve a greater percentage of applications for relief. Moreover, many questioned the veracity of the Agency’s reported numbers because so many judges who went to the border courts had no work to do and faced malfunctioning equipment, often with no internet connection, or files. Meanwhile the dockets of these Immigration Judges at their home courts were reset to several years later, not to mention the unnecessary additional 4

financial costs of these details. Such docket shuffling tactics have led to further increases in delays and to the backlog of cases before the Immigration Court system as a whole.

On the micro level, individual judges have been tasked with responding to complaints voiced by DHS to the Executive Office for Immigration Review (EOIR) management about how a particular pending case or cases are being handled, in disciplinary proceedings without the knowledge of the opposing party.

⦁ DOJ Priorities

One of the most egregious and long-standing examples of the structural flaw of the Courts’ placement in the DOJ is that Immigration Judges have never been able to exercise the congressionally mandated contempt authority statutorily authorized by Congress in 1996. This is because the DOJ has never issued implementing regulations in an effort to protect DHS attorneys (who it considers to be fellow federal law enforcement employees). However, as Congress recognized in passing contempt authority, misconduct by both DHS and private attorneys has long been one of the great hindrances to adjudicating cases efficiently and fairly. For example, it is not uncommon for cases to be continued due to private counsel’s failure to appear or be prepared for a hearing, or DHS’ failure to follow the Court’s orders, such as to conduct pre-trial conferences to narrow issues or file timely documents and briefs. Just a couple of months ago, when I confronted an attorney for his failure to appear at a previous hearing, he candidly stated that he had a conflict with a state court hearing, and fearing the state court judge’s sanction authority, chose to appear at that hearing over the immigration hearing in my court. Similarly, when I asked a DHS attorney why she had failed to engage in the Court mandated pre-trial conference or file the government’s position brief in advance of the hearing, she defiantly responded that she felt that she had too many other work obligations to prioritize the Court’s order. These examples represent just a small fraction of the problems faced by Immigration Courts, due to the failure of the DOJ, in over 20 years, to implement the Congress approved even-handed contempt authority..

Similarly, Immigration Judges are subject to regulations that provide a one-sided veto of a judge’s decision by DHS. Title 8 C.F.R. section 1003.19 provides that the DHS, who appears as a party before the Immigration Court, can effectively vacate an Immigration Judge’s bond decision through automatic stay powers that override an Immigration Judge’s decision to set or reduce bond for certain individuals.

In a separate failure to safeguard the Immigration Courts, the DOJ has consistently proven to be ineffective in the timely appointment of judges. Historically, this was due, in part, to the Court’s placement in a law enforcement agency where for years, the Court was treated as an afterthought in DOJ, receiving scraps instead of full allotments of needed resources. However, even after the 9/11 tragedy, the DOJ has still visibly struggled with filing Immigration Judge positions, many 5

of which have taken almost two years to fill. Hiring practices by the Agency have a demonstrated history of politically motivated appointment practices, as evidenced by the Office of the Inspector General and Office of Professional Responsibility reports exposing political concerns and nepotism that have crept into the hiring process.2 And now, the DOJ surreptitiously has made substantive changes to the qualification requirements for judges, over-emphasizing litigation experience to the exclusion of other relevant immigration law experience. This has created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds, such as academics and United States Citizenship and Immigration Service attorneys, who are perceived as not sufficiently law enforcement oriented.

2 An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, DOJ OIG and OPR, July 28, 2008; Report Regarding Investigation of Improper Hiring Practices by Senior Officials of the Executive Office for Immigration Review, DOJ OIG, November 2014.

Another example of the structural problem of placing a Court in the DOJ has been the application of federal employee performance evaluations on Immigration Judges. Many courts have performance reviews for Judges, but the overwhelming majority of these reviews follow a judicial model – a transparent, public process where performance is evaluated by input from the stakeholders (attorneys, witnesses, and court staff) based on quality and temperament, not quantity, and is not tied to discipline. However, despite strenuous objections and warnings of conflicts of interest from the NAIJ, the EOIR has chosen to use a traditional federal employee performance review system. These evaluations are not public and are conducted by a management official who is often not located in the same court and does not consider input from the public, and can result in career-ending discipline to a Judge who makes a good faith legal decision that his or her supervisor considers to be insubordinate. This is the flawed current performance evaluation model for Immigration Judges, without the added, soon to be implemented, disastrous production quotas and time-based deadlines that were recently announced by the Department, which I will discuss shortly.

⦁ EOIR’s Decision to Halt the LOP Program

Another stark example of the mismanagement of the Immigration Court due to its placement in an agency with a competing mission is the recently announced EOIR decision to halt the Legal Orientation Program (LOP), despite its proven track record of increased efficiency and enhanced fundamental fairness for pro se respondents in detention facilities. This population of respondents, who are being held in custody, are frequently in extremely remote locations, and often lack the resources or the means to secure counsel or even to properly represent themselves due to language access issues. The lack of assistance in these areas delays their proceedings, often needlessly for those who seek merely a brief legal consultation before making an informed and timely decision to accept an order of removal. Thus in cases where the respondents lack 6

viable relief, the LOP can be instrumental in helping respondents make an informed decision to accept a final order of removal, dramatically minimizing costly detention time and expense.

Competent counsel, when available, can assist the Court in efficiently adjudicating cases before it. In the absence of competent counsel, the LOP provides the necessary bridge to ensure a minimum standard of due process is quickly and efficiently provided. The LOP helps respondents better understand the nature of these proceedings and the steps they need to take to present their cases when in court, understand and complete their applications for relief, and obtain evidence in their case. Without such assistance, judges are required by regulation to spend time and resources explaining these proceedings, soliciting the necessary information for the case, and providing respondents the opportunity to obtain evidence once they become aware it is needed.

Ironically, even the DOJ website has publicly supported the LOP program, citing the positive effects on the Immigration Court process, and the fact that cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention. However, once again without consultation with NAIJ, EOIR has made a decision seemingly ignoring the ramifications of how this will likely play out in the remote court locations, further undermining the structural integrity and the smooth functioning of the Court.

⦁ EOIR’s Recent Severe Restriction of Immigration Judge Speaking Engagements

In September 2017, the Agency issued a new memorandum almost eliminating personal capacity speaking engagements for Immigration Judges on any matters relating to the Court or immigration law.

The primary role of a court is to be a neutral and transparent arbiter, and this perception is reinforced when the court is accessible to the community it serves. Public access and understanding of what courts do is essential to build the understanding and trust needed for the judicial system to function smoothly. Judges are the face of that system and serve as role models who should be encouraged to engage with the community to inspire, educate and support civic engagements. Many of our Immigration Judges are active members of the legal and civil community who are sought out to speak in schools, universities, and bar associations as role models and mentors. They help the community better understand our Immigration Courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public. In the past, the DOJ had permitted Immigration Judges to publicly speak in their personal capacity on issues related to the Court and their Immigration Judge roles, (with the use of their title and a disclaimer that they are not speaking on behalf of the Agency).

This new policy brought a 180-degree reversal on many existing programs that included participation of Immigration Judges, from the Model Hearing Program, the Stakeholder 7

Meetings, to appearing as guest lecturer at one’s Alma Mater, etc. Judges who have been engaged in the community are now being deprived of the opportunity to fulfil those roles. This ill-advised move is yet another example of the misguided instincts of a law enforcement agency, which endeavors to keep its operations opaque, leading to an absolutely wrong result for a court system where transparency is essential to build public trust and confidence. This is yet another example which underscores the structural flaw that plagues our courts.

MISGUIDED SOLUTIONS TO THE BACKLOG

⦁ IJ Production Quotas and Deadlines

Based on a completely unsupported assertion that this action will help solve the Court’s backlog, DOJ has taken an unprecedented move that violates every tenet of an independent court and judges, and has announced that it will subject all Immigration Judges to individual production quotas and time-based deadlines as a basis for their performance reviews. A negative performance review due to failure to meet quotas and deadlines may result in termination of employment. This is despite the legal duty of Immigration Judges, codified by regulation, to exercise independent judgement and discretion in each of the matters before them. The havoc this decision will wreak cannot be understated or underestimated.

To fully understand the import of this approach, one must make the critical distinction between court-wide “case completion goals” or “benchmarks” versus individual production quotas and time-based deadlines for judges. The Immigration Court system has had “case completion goals” of some sort for over two decades. These are tools used as resource allocation metrics to help assess resource needs and distribute them nationally so that case backlogs are within acceptable limits and relatively uniform across the country. In fact, when individual performance evaluations were first applied to Immigration Judges over a decade ago, the EOIR agreed to a provision that prevented any rating of the judges based on number or time based production standards, in recognition of the fact that quotas or deadlines placed on an individual Immigration Judge are inconsistent with his or her independent judicial role. The public comments at that time made clear that otherwise quantitative priorities or time frames could abrogate the party’s right to a full and fair hearing. At that time, the DOJ assured the public that case completion goals would not be used this way and that judges would maintain the discretion to set hearing calendars and prioritize cases in order to assure they had the time needed to complete the case.

This tool of court-based evaluation metrics stands in stark contrast to the individual production quotas and completion deadlines which are now being proposed by EOIR. Introduction of individual Immigration Judge production quotas is tantamount to transforming a judge into an interested party in the proceedings. It is difficult to imagine a more profound financial interest than one’s very livelihood being at stake with each and every ruling on a continuance or need for additional witness testimony which would delay a completion. Yet production quotas and time- based deadlines violate a fundamental canon of judicial ethics which requires a judge to recuse 8

herself in any matter in which she has a financial interest that could be affected substantially by the outcome of the proceeding.

This basic principle is so widely accepted that the NAIJ is not aware of a single state or federal court across the country that imposes the type of production quotas and deadlines on judges like those that EOIR has now announced. A numeric quota or time-based deadline pits the judge’s personal livelihood against the interests both the DHS and the respondent. Every decision will be tainted with the suspicion of either an actual or subconscious consideration by the judge of the impact his or her decision would have regarding whether or not he or she is able to fulfill a personal quota or a deadline.

In addition to putting the judges in the position of violating a judicial ethical canon, such quotas pits their personal interest against due process considerations. Recently, the Seventh Circuit Court of Appeals noted in a case addressing imposition of case completion goals – not quotas – that there may be situations that such goals, even though they are not tied to a judge’s performance evaluation, could so undermine decisional independence as to create a serious issue of due process.

If allowed to be implemented, these measures will take the Immigration Courts out of the American judicial model and place it squarely within the model used by autocratic and dictatorial countries, such as China, which began instituting pilot quota programs for their judges in 2016.3 NAIJ does not believe that such courts should serve as a good blueprint for EOIR or for any court in a democratic society.

3See www.chinadaily.com.cn/china/2017-02/27/content_28361584_6.htm.

⦁ Unintended Consequences of Misguided Solutions

The DOJ has touted the imposition of a quota system on judges as a solution to the crushing backlogs facing the Immigration Courts. It is critical to recognize that the current backlog of cases is not due to lack of productivity of Immigration Judges; it is due, in part, to the Department’s consistent failure, spanning more than a decade to hire enough judges to keep up with the caseload. In 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270. Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015. Even with a recent renewed emphasis on hiring, the number of Immigration Judges nationwide as of April 2018 stood at approximately 330 sitting judges, well below authorized hiring levels of 384. From 2006 to 2018, while the caseload has quadrupled (from 168,853 to 684,583 as of March 1, 2018), the number of Immigration Judges has not even doubled! Additionally, up to 40 percent of the Immigration Judge Corps are retirement eligible 9

and are exercising that right at a much higher rate than previously seen. Thus, hiring by the Agency has also failed to keep pace with the loss of judges by retirement or attrition.

Moreover, the 2017 GAO report on Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Changes (GAO-17-438) shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances which occurred primarily due to politically motivated changing court priorities, forced Judges to reset cases that were near completion in order to address the cases which were the priority “du jour,” and have had a tremendous deleterious effect on case completion rates. The same report shows that continuances attributed to the needs of the judge was responsible for only 11% of the continuances granted, clearly debunking the myth that Immigration Judges are significantly contributing to the backlog.

The cause of the increasing backlog is obvious: the ever-ballooning budget for immigration law enforcement which has not been accompanied by concomitant resources to the Immigration Courts. In the period that the budget for DHS saw an increase of 300 percent, the Immigration Court’s budget was only modestly increased by 70 percent. This is tantamount to increasing the lanes in a highway from one to three but failing to increase the number of exit ramps for everyone, then claiming that the exit ramps are the cause of the increased congestion and traffic. Simple common sense tells us otherwise.

Finally, the imposition of numeric quotas and time-based deadlines will have the unintended consequence of further adding to the backlog. A similar measure proposing to “streamline” the adjudications of immigration removal cases was introduced post 9/11 during the Attorney General John Ashcroft era. In the face of a ballooning backlog (which pales in comparison to the current one), the DOJ implemented streamlining measures at the Board of Immigration Appeals that significantly increased the number of case completions at the expense of reasoned decisions. This action caused a flood of appeals to the circuit courts, to a five-fold increase, from 1764 filings in 2002, when the program was announced, to 8446 in 2003 and onwards. Many of these cases were ultimately reversed or remanded all the way back to the trial court level, due to actual or perceived insufficiencies of the process or paucity of reasoning in the decisions. The “streamlining” program was quietly put to rest many years later when its failure was no longer deniable. If Immigration Judges are subjected to production quotas and time-based deadlines, the result will be the same: appeals will abound, repeating a history which was proven to be disastrous. Rather than making the overall process more efficient, this change will encourage individual and class action litigation, creating even longer adjudication times and greater backlogs. 10

Another unintended consequence if these quotas and deadlines are applied, is that judicial time and energy will be diverted to documenting performance rather than deciding cases. Immigration Judges will become bean-counting employees instead of fair and impartial judges, and their supervisors will become traffic cops monitoring whether the cases are completed at the correct speed. What a waste of skilled professional expertise! Judges’ job security will be based on whether or not they meet these unrealistic quotas and their decisions will be subjected to increased appeals based on suspicion regarding whether any actions they take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. It is difficult to find a shred of practical justification in this approach.

SHORT TERM SOLUTIONS

⦁ Clarify the Definition of the Immigration Judge Position

The most pressing matter threatening the integrity and efficiency of the Immigration Court system which can quickly and easily be remedied is the DOJ’s decision to impose Immigration Judge production quotas and deadlines. If permitted to be implemented, as planned, on October 1, 2018, the Immigration Courts as we know them will cease to exist. Immigration Judges will no longer be able to serve as impartial and independent decision-makers over the life-altering cases before them.

To preserve the judicial independence of Immigration Courts Congress can:

(1) Amend the Immigration and Nationality Act to clarify the definition of an Immigration Judge as follows:

“The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title, whose position shall be deemed to be judicial in nature and whose actions shall be reviewed only under rules and standards pertaining to judicial conduct.”

This definitional change was offered by Senators Gardner and Bennet as part of their bipartisan immigration amendment earlier this year. Senator Hirono’s recent immigration amendment also included this language;

(2) Alternatively, Congress can add Immigration Judges to the short list of federal government employees whose positions are exempt from performance evaluation due to the nature of their duties, as are Administrative Law Judges (ALJs). 5 U.S.C. § 4301(2)(D). Recognizing that federal employee performance evaluations are antithetical to judicial independence, Congress exempted ALJs from performance appraisals and ratings by including them in the list of 11

occupations exempt from performance reviews. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) to add a new paragraph (I) including Immigration Judges as an additional category in the list of exempt employees.

Extension of 5 U.S.C. § 4301(2)(D) to Immigration Judges is not an indication that NAIJ is opposed to performance evaluation of Immigration Judges. To the contrary, NAIJ fully supports performance evaluations that are based on judicial models, such as those recommended by the American Bar Association. These models stress judicial improvement as the primary goal, emphasizes process over outcomes, and places a high priority on maintaining judicial integrity and independence. Moreover, to the extent that any numeric metrics are included in such models, they would not and “should not be used for judicial discipline.”4 We encourage EOIR to abandon its myopic focus on numerical metrics and instead institute a judicial performance evaluation based on these models.

4https://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blackletterguidelines_jpe.authcheckdam.pdf.

Continued enhancement of resources will be an exercise in futility and will fail to reduce the crippling backlogs plaguing the Immigration Courts if the integrity and independence of the Immigration Judge decision-making authority is not protected. Without much needed protection, the inevitable increase in individual and class action litigation and the circuit court backlash (similar to the “streamlining” era) is virtually certain to ensue.

⦁ Additional Resources

NAIJ appreciates the additional judges and staff that Congress has provided and the recent allocation of an additional 100 Immigration Judge teams in the appropriations bill. This is a welcome move in the right direction. However we would be remiss if we failed to point out that even if all the appropriated judge positions are filled promptly (which is a task the DOJ has been unable to accomplish for decades), the pressing crisis of the backlog will not be resolved. The backlog of pending cases has almost quadrupled in the last twelve years. Yet, the number of judges has not even doubled (even with the inclusion of the recently allocated 100 judges). Thus, it is not unreasonable to conclude that with the continued flood of cases being filed with the Court due to increased law enforcement action, the need to match that rate of increased resources with the Courts is a necessary condition of addressing the challenge of the backlog.

Moreover, the Courts are woefully behind the times in technology. The Courts’ computer systems and printers are outdated. The software programs are several generations behind and lag in processing speed. Also, we depend on digital audio recording to capture our hearing audio in lieu of in-person transcribers, and in many locations we function with heavy reliance on tele video equipment. Yet these technologies are no longer state of the art, causing not infrequent 12

delay and malfunctions. We have yet to arrive in the 21st century in technology at EOIR. Unlike other courts who have embraced electronic filings and records, we are still under the weight of hardcopy files, some of which can weigh up to 10 to 15 pounds per case. Increasingly adequate space for Court locations has become an issue, leaving many Courts bursting at the seams due to thousands of files, with staff having to share cubicles, and cramped, unhealthy and unsafe spaces that were never intended to be used as work space.

ENDURING SOLUTION

⦁ An Article I Immigration Court is the Clear Consensus Solution that is Urgently Needed

While it cannot be denied that the short term solutions cited above are needed immediately, Band-Aid solutions alone cannot solve the persistent problems facing our Immigration Courts. The problems compromising the integrity and proper administration of a court highlighted above underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. The DOJ has been provided years of opportunity to forestall the impending implosion at the Immigration Courts. Instead of finding long term solutions to our problems, DOJ’s political priorities and law enforcement instincts have led our Courts to the brink of collapse. With the latest misguided initiative to impose Immigration Judge production quotas and deadlines, DOJ has put accelerant on the fire; if these changes are implemented the integrity of the Immigration Court will be all but destroyed and paralyzing dysfunction will ensue.

Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger Agency with competing needs; and eliminating top-heavy Agency bureaucracy. In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most immigration judges and attorneys agree the long-term solution to the problem is to restructure the immigration court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded.

To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal will remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions 13

of an adjudicative nature that are currently being performed by the judges and Board members in the Executive Office for Immigration Review. The new court would consist of appellate and trial level judges. The appellate judges would be appointed by the President and confirmed by the Senate, and the immigration trial judges would be appointed by the appellate judges. The substantive law of immigration and corresponding enforcement and policy-determining responsibilities of the DHS and DOJ under the INA would be unchanged. Final decisions of the new court would be subject to review in the circuit court of appeals similar to the current model. However, in the new court, the Department of Homeland Security would be able to seek review of the court’s decisions to the same extent as the individuals against whom charges were filed. Practically, the transition to the new “United States Immigration Court” would involve minimal transitional or financial challenges as much of the physical structures and personnel would already be in place.

NAIJ has endorsed this bill5 and urges you to take immediate steps to protect judicial independence and efficient resolution of cases at the Immigration Courts by enacting legislation as described above. Failure to act will result in irreparable harm to the immigration law community as we know it. Action is needed now!

5 https://www.naij-usa.org/images/uploads/publications/NAIJ_endorses_FBA_Article_I_proposal_3-15-18.pdf

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

Here are links to the other statements submitted to the Senate Judiciary Committee, all well worth a read:

Other Statements:

Law Professor Statement: Immigration Law Professors Issue Statement on Strengthening and Reforming America’s Immigration Court System
AILA National Statement: AILA Statement on Strengthening and Reforming America’s Immigration Court System Hearing

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

It’s no secret that White Nationalist and “21st Century Jim Crow” Sessions was totally unqualified to be the Attorney General of the United States. Yet, the GOP Senate put in him that position knowing full his extremist views, lack of executive qualifications, and history of racially insensitive words and actions.

The Obama Administration’s indolent, sometimes disingenuous, and often highly politicized mis-handling of the Immigration Court System also contributed to the current sad state of justice for immigrants. To paraphrase the words of one of my colleagues, the Obama Administration’s poor handling of the Immigration Courts didn’t cause Jeff Sessions and his toxic policies, but it certainly did nothing to dissuade or prevent them and in many ways set the stage for the current due process disaster.

Congress also stood by and watched this unfolding disaster in a court system they created without providing any effective assistance (except for too few additional positions too late to help) and in many cases making things worse by ramping up enforcement without thinking about the consequences for the judicial system.

We need to elect legislators pledged to due process, fairness to all including immigrants, strong effective oversight of the DOJ, investigation of Sessions’s blatant attempt to “deconstruct” the U.S. justice system (particularly as it applies to immigrants and vulnerable minorities) which should eventually lead to his removal from office, and the transfer of the U.S. Immigration Courts out of the DOJ into an independent structure where they never again can be compromised by the likes of Jeff Sessions.

Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

04-19-18

HEAR JUDGE A. ASHLEY TABADDOR, PRESIDENT OF THE NAIJ TESTIFY LIVE BEFORE THE SENATE JUDICIARY COMMITTEE ON WEDNESDAY APRIL 18, 2018 ABOUT THE APPALLING STATE OF “JUSTICE” IN OUR UNITED STATES IMMIGRATION COURTS UNDER TRUMP & SESSIONS!

From: John Manley [mailto:jmanleylaw@gmail.com]
Sent: Monday, April 16, 2018 12:34 PM
To: AILA Southern California Chapter Distribution List <southca@lists.aila.org>
Subject: [southca] IJ Tabaddor to testify in Congress Wednesday

Colleagues,

As currently scheduled, Judge A. Ashley Tabaddor is expected to testify this Wednesday at 2:30PM EST 11:30AM PST. at a hearing on Strengthening and Reforming America’s Immigration Court System

Here is the link to the event, if you want to watch it: https://www.judiciary.senate.gov/meetings/strengthening-and-reforming-americas-immigration-court-system

—

John M. Manley
Attorney at Law
11400 W Olympic Blvd., Suite 200
Los Angeles, CA 90064
Phone: (310) 597-4590
Fax: (310) 597-4591
www.johnmanley.net;
email: jmanleylaw@gmail.com

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

PWS

04-16-18

WASHPOST: SEN DIANNE FEINSTEIN (D-CA) HITS A “HOME RUN” WITH OP-ED — NO, RIGHTS OF CHILD ASYLUM SEEKERS ARE NOT “LOOPHOLES” IN OUR IMMIGRATION LAWS! — What’s Happened To Our Common Sense & Humanity?

https://www.washingtonpost.com/opinions/protecting-defenseless-children-is-not-an-immigration-loophole/2018/04/13/11bf9012-3e64-11e8-a7d1-e4efec6389f0_story.html?utm_term=.8c9ed9210908

Sen. Feinstein writes:

Dianne Feinstein, a Democrat, represents California in the U.S. Senate.

I remember watching the nightly television news in the 1990s and seeing a 15-year-old Chinese girl trembling before a U.S. immigration judge. Despite having committed no crime, she was shackled and sobbing. She couldn’t speak English, and it was clear she had no understanding of what the judge was saying or what would happen to her.

Her parents had sent her to the United States in the cargo hold of a container ship because she had been born in violation of China’s rigid family-planning laws — and was therefore denied citizenship, access to health care and education.

By the time the girl appeared before the immigration judge, she had already been detained for eight months. Even more shocking: After she was granted political asylum, she was detained for four more months before she was released.

This situation would not be allowed to occur today because Congress has enacted laws to provide basic humanitarian protections to unaccompanied immigrant children.

The Trump administration recently reignited its attacks on these protections, with the president going so far as to call laws that protect helpless children “loopholes.”

The administration says these laws prevent immigrant children from being removed from the country, when in fact the goal is to ensure that these children are detained for as little time as possible and only in an appropriate setting, they receive adequate food and water, and that they are given the opportunity to apply for asylum.

Under these laws, each child has a right to make their case before a trained asylum officer. If the hearing demonstrates the need for protection by admission to the United States, we’re obligated to provide it. And in cases where a child does not qualify for asylum or other forms of relief, they’re returned safely to their home country.

I know the intent of these laws because I authored two of them. They are not loopholes.

It’s important to understand why Congress acted to thus ensure basic human dignity for children.

The story of the Chinese girl I saw on television was not unique — mistreatment of child immigrants was widespread. Another young girl who fled China was detained in a facility that also held minors who had been convicted of murder and rape. Despite never having violated criminal law or been accused of a crime, she was routinely handcuffed and strip-searched.

A young boy who fled Colombia after being targeted for recruitment by Revolutionary Armed Forces of Colombia guerrillas was held in the same detention facility for six months.

Children as young as 4 were held in secure prisons, isolated and forced to wear prison uniforms and shackles. Some were even placed in solitary confinement, even though they weren’t accused of any crime.

These stories, which were detailed by Human Rights Watch, illustrate decades of government mistreatment of children, and they were the genesis of laws Congress passed to guarantee minimum requirements for treating children humanely.

A key first step toward reform came in 1997, after years of litigation over treatment of unaccompanied minors, with a settlement called the Flores agreement. Among its provisions were requirements that the government release detained children to an adult as soon as possible, hold children who can’t be released in appropriate facilities and ensure that all facilities meet humane standard

Three years later, I introduced the Unaccompanied Alien Child Protection Act and was able to get portions of the bill included in the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008.

The two laws, combined with the Flores agreement, are intended to ensure children don’t fall through the cracks of a system that processes thousands of them each year.

They require that children under 18 be placed in the least restrictive setting that is in their best interests. Rather than holding children in detention facilities that also hold adults or criminal juvenile offenders, preference is given to releasing them to family members or appropriate sponsors, such as a family friend.

Such placements ensure that children aren’t held in indefinite detention pending resolution of their cases, which can sometimes take years. They also mean that taxpayers aren’t paying for that detention.

These aren’t loopholes, they are basic principles of common human decency. And to demonize and politicize these children is appalling.

Contrary to the picture painted by this administration, current policies don’t guarantee a child will be able to remain in the United States. Nor do these policies mean dangerous individuals are being released onto our streets.

The Trump administration’s efforts to repeal protections for children are based on an ignorance of history. The only effect of repeal would be more children held in unsafe conditions at exorbitant costs to the taxpayer.

I will oppose any efforts to change these laws, and I call upon my colleagues in Congress to join me in resisting efforts to roll back protections for immigrant children.

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

Of all the depraved xenophobic, White Nationalist, racist ravings of Trump, Sessions, Homan, Neilsen, Kelly, Miller, Goodlatte, Cotton, and other GOP restrictionists, the war on defenseless children has to be the most totally despicable! Most of these kids are fleeing genuine dangers in their home countries. The real problem is that the US has intentionally, for political reasons, twisted refugee law so as to not recognize their legitimate status as refugees and asylees.

As someone said at an Asylum Conference I recently attended, the BIA must be the only 15 so-called “asylum experts” in the world who don’t recognize that those fleeing gang recruitment in the Northern Triangle fit squarely within the “particular social group” classification for asylum protection.

Even if they weren’t a direct fit, these children qualify for relief under the Convention Against Torture or should be given another type of humanitarian relief such as TPS or Deferred Enforced Departure. Screening them for background and rapidly admitting them into the U.S. in some status would prevent them from becoming part of the current politically created Immigration Court “backlog,” actually caused primarily by gross mismanagement, intentionally skewed anti-asylum legal interpretations, and political manipulation by this and past Administrations.

Of course the US could absorb them all, and prosper by doing so! Indeed, we’ve absorbed approximately 11 million individuals outside the system who have largely been a boon to our economy and our society. The real problem here is the White Nationalists who deny the reality of human migration and the inevitability of changing demographics, not the migrants themselves.

PWS

04-14-18

HON. ROBERT VINIKOOR TELLS US EXACTLY WHY QUOTAS ARE A TOXIC IDEA FOR US IMMIGRATION COURTS — One Of the “Best Ever” Tells It Like It Is!

https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/

Judge (Ret.) Vinikoor writes:

Take it from a former judge: Quotas for Immigration Judges are a Bad Idea.

On March 30^th, the U.S. Department of Justice and Attorney General Sessions announced that Immigration Judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregards due process. As a recently retired immigration judge, I believe this decision is short sighted and not fair to judges, or to the parties that appear in court on either side (government or immigrant and their families), or to our legal system.

Attorney General Sessions says that the current back log in immigration courts is a primary reason for this entirely new quota system; however, I know from experience that quotas will not reduce backlog and will in fact increase our current backlog problems. About 15 years ago, former Attorney General John Ashcroft attempted to reduce backlogs at the Board of Immigration Appeals (the court that hears all the appeals from immigration judges’ decisions). Ashcroft eliminated the Board’s authority to review de novo (or, review as if hearing the case for the first time) decisions of the Immigration Judges with regard to findings of fact and determination of an immigrant respondent’s credibility. As a result, the Board began issuing summary two page decisions, with little or no legal analysis. Those shortened decisions did reduce the amount of time cases were pending before the Board of Immigration Appeals, but had the opposite effect on the actual backlog of immigration cases as thousands of petitions for review were filed throughout the country with the Courts of Appeal. Given the increase in the number of filings and the decrease in the thoroughness of the decision, the Courts of Appeal became extremely hostile to the quality, professionalism and final agency work product of the immigration court judges and particularly the Board. Many cases were remanded, or sent back to immigration judges, for new hearings based on perceived mistakes at the trial level or at the Board, resulting in further delays in court processing times and the issuance of final decisions.

Attorney General Sessions would do well to learn from his predecessor’s mistake. Sessions’ mandate that the judges decide cases “faster” and more “efficiently” ignores the fact that the immigration court judges are currently rendering decisions in a timely manner. However, immigration judges must also follow the constraints of due process, which means giving both sides an opportunity to present their case and then for the judge to fully consider the applicable law and issue a thoughtful decision. A system that evaluates immigration judge performance based on how fast they can complete cases will certainly undermine the quality and thoroughness of decisions. Current law and our legal system requires full and fair hearings, followed by a well-reasoned decision that is consistent with the facts and relevant law. An immigration judge should be evaluated based on quality not quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. As we have seen before, poor decisions will directly result in more appeals to the Board of Immigration Appeals and the Courts of Appeal, causing more delays and running contrary to the goals of the Attorney General.

An equally troubling consequence of the case completion requirement is the possibility of a judge’s decision being influenced by factors outside the facts of the case. For example, the court is asked for a continuance in many cases to await action or decision by the U.S. Citizenship and Immigration Services (USCIS) on pending applications. Such applications are “u” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to US citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of his concern about his completion numbers and keeping his job. That is not justice; it seems more like an assembly line. Similarly, in some cases a continuance may be necessary because of the need for additional evidence or because of a witness’s unavailability. But now, a judge will be hesitant to grant such a continuance if she is concerned about his completion numbers, salary, or job security.

Additionally, an arbitrary case completion number of 700 ignores the wide disparity of cases appearing before the immigration courts. Unrepresented cases at the border or cases in detention often are completed in expedited fashion where little or no relief is sought. However, in many of the interior courts, such as in Chicago where I was a judge, most applicants are represented, present multiple witnesses including experts, and submit sophisticated legal arguments requiring extended trial time. These interior courts complete far less merit cases than at the border, yet the decisions often involve more complex legal issues. To provide context, I’d guess that judges in the interior, working the same hours and pace as judges on the border, probably complete 400 or 500 cases per year. To average the nationwide completion rate completely ignores the wide disparity of decision complexity required in different parts of the country.

Finally, the new quotas are an affront to due process and our legal system. Immigration judges are required by law and the Constitution’s Fifth Amendment to exercise due process in all cases, considering all the facts of case. Judges currently do this and issue decisions in an expeditious manner as soon as possible; judges do not purposefully stall cases. Putting artificial pressure on judges to complete cases more quickly is wrong; Attorney General Sessions is essentially asking the judges to short cut or violate due process, by disregarding thoroughness, fairness, and litigants’ opportunity to be heard, and abandon current law-abiding procedures for case adjudication.

In short, I believe the administration’s plan to impose numeric quotas on immigration judges will not speed up “deportations” if this is their goal, and may result in unforeseen consequences that actual delay the fair hearing process that presently exists.

Judge Vinikoor joined the law firm of Minsky, McCormick & Hallagan, P.C., in 2017 after serving over 30 years as an Immigration Judge.

Judge Vinikoor was appointed as an Immigration Judge in January 1984. During his long tenure on the immigration bench, Judge Vinikoor has authored numerous precedent deciding cases covering topics such as crimes involving moral turpitude, aggravated felony offenses, frauds committed at time of entry and/or adjustment and claims to U.S. citizenship. Judge Vinikoor’s decisions helped define the age limitations for K-4 beneficiaries seeking adjustment of status, the use of Section 245(i) to waive inadmissibility, and the scope of numerous discretionary waivers. A number of published opinions have addressed Judge Vinikoor’s expert analysis in cases involving burden of proof, marriage fraud, and Section 216(c)(4) evidence. During the past 30 years Judge Vinikoor has heard evidence in asylum cases from around the world. His decisions have led to a better understanding of the scope and evidence needed to qualify as a “refugee” under the Immigration and Nationality Act. Upon his retirement from the bench, he was the second most senior Immigration Judge in the country.

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

Prior to his retirement in 2017, my good friend and colleague Judge Bob Vinikoor was one of the most widely respected, indeed revered, U.S. Immigration Judges. Indeed, at the time of his retirement, he was #2 in seniority among all U.S. Immigration Judges.

He was widely known for his fairness, scholarship, kindness, practical wisdom, humor, and ability to “move” a docket while respecting everyone’s rights. In a rational judicial system, those in charge would be looking for a way to “clone” someone like Judge Vinikoor and use his knowledge and skills to teach and mentor younger judges, rather than letting him pass into retirement.

In the “Age of Trump & Sessions” — with a blatant effort underway to “dumb down” the U.S. Immigration Judiciary and reduce it to an assembly line operation — it’s highly unlikely that there will be more Judge Vinikoors. That’s a huge loss for everyone, but particularly for the cause of justice in America and for those who depend on the Immigration Court system to deliver potentially life saving Due Process and fairness!

PWS

04-12-18

The immigrant ‘caravan’ is a test. Trump wants us to fail.

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Featured Panelists:

(Ret.) Immigration Judge Paul Schmidt, Adjunct Professor of Law, Georgetown University Law

Center Heidi Altman, Policy Director, National Immigration Justice Center James R. McHenry, Director, Executive Office for Immigration Review Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

James R. McHenry, Director, Executive Office for Immigration Review

Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

Karen Grisez, Special Advisor to the ABA Commission on Immigration; Public Service Counsel, Fried Frank LLP

Related posts:

Related posts:

Related posts:

Related posts:

Snapshots from the US-Mexico border

Related posts:

Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

Related posts:

Related posts:

Related posts:

Related posts: