Due Process – Page 299 – immigrationcourtside.com

The First Target Of The Trump/Sessions Immigration Agenda Might Not Be Undocumented Individuals — “H-1B” Program That Brings Professionals and Techies In To Aid U.S. Companies Appears To Be In The Crosshairs — Some Indian Pols Rejoice At Prospect Of Relocating Silicon Valley To India!

https://www.washingtonpost.com/world/asia_pacific/trump-and-sessions-plan-to-restrict-highly-skilled-foreign-workers-hyderabad-says-bring-it-on/2017/01/08/8701e0ca-d2c0-11e6-aa0c-f196d8ef0650_story.html?utm_term=.bd6585171144

“But the H-1B cap meant that the bulk of Indian tech workers stayed back. The current cap — not just from India — is 65,000, plus another 20,000 who have graduated from American universities with advanced degrees, down from almost double that at the beginning of the 2000s.

Among those who do get the visas, most ultimately return to settle and work in India. In Hyderabad, many of those returnees are confident that their city can compete with Silicon Valley for India’s brightest young minds.

K.T. Rama Rao, the son of the current chief minister, was one of them. Now he’s the minister for information technology in his father’s government. He pointed to Apple as an example of how Hyderabad could absorb the thousands of workers in a potential future with far fewer H-1Bs — or without them altogether.

“Apple is already moving their maps division here, and they’re doing that because we’re producing more G.I.S. talent than anyone else in the world,” he claimed in an interview, referring to geographic information systems. “Ideally, a president of the United States would have a balanced perspective on business, but if he wants tech firms to stay, he should create better job readiness in the U.S.”

Rao said that legislation targeting big Indian outsourcing companies would wean them away from their dependency on servicing American companies. Without the visa program, they would have to engage in new lines of work that created value in Hyderabad and not abroad, he said.

Amit Jain, now the president of Uber India, is another returnee who used to be on an H-1B. He said that the influx of American companies, as well as a growing indigenous start-up culture, could offer what Indians used to seek in the United States closer to home.

“We definitely have a more robust ecosystem here now,” he said. “We’re seeing plenty of hiring in the future.”

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I find the projected continued role of Jeff Sessions in this process interesting. While the Attorney General used to be responsible for administering the H-1B program, that ended more than a decade ago with the transfer of the adjudication functions of the “Legacy INS” to the then newly created Department of Homeland Security (“DHS”) and it’s United States Citizenship and Immigration Services (“USCIS”) Division. The Attorney General’s responsibility for the H-1B program is now strictly “in the margins:” narrow legal issues involving individuals in H-1B status occasionally arise in Immigration Court proceedings, and the Office of Immigration Litigation (“OIL”) in the Civil Division and the U.S. Attorneys are occasionally called upon to defend particular USCIS policies or interpretations of the H-1B category in Federal Court.

Normally, the moving force within an Administration on H-1B policies and reforms would be the Secretary of Homeland Security — soon to be General John Kelly. Sessions’s continued involvement as Attorney General in what normally would be DHS/USCIS issues, could presage a reincarnation of the old “Commissioner of Immigration” role. The Commissioner once headed the INS within the Department of Justice and was a powerful figure whose “finger was literally in every pie in the immigration world.”

My recollection is that one of the ideas of moving the immigration enforcement and service functions to the DHS, while leaving the Immigration Courts behind within the Department of Justice was to increase the separation of the immigration enforcement and service functions from the legal and “fair and impartial hearing” functions of the Immigration Courts. While this distinction has always worked better in theory (and, perhaps, in terms of perception) than in actual practice, it is likely to become further blurred and hampered if the Attorney General intends to assume a primary immigration enforcement and policy making role within the Administration.

Presumably, Senator Sessions’s specific views on how he sees his role in immigration and his plans for maintaining and improving the due process role of the Immigration Courts — currently struggling with a 500,000+ case backlog and dozens of unfilled judicial positions — will be better fleshed out during the upcoming confirmation process.

PWS

01/09/17

Sessions’s “Enforcement Only” Views On Immigration Detailed — “Nice Guy” Factor Expected To Smooth Comfirmation

https://www.washingtonpost.com/world/national-security/at-the-justice-department-sessions-could-play-a-key-role-on-immigration/2017/01/07/84a94a54-c7c9-11e6-85b5-76616a33048d_story.html?utm_term=.

“As a senator from Alabama, Jeff Sessions has vigorously opposed any efforts to reform the U.S. immigration system in ways that might benefit those in the country illegally. He has advocated tempering even legal immigration, fearful that people from other countries might take Americans’ jobs.

Sessions (R), President-elect Donald Trump’s pick to be the next attorney general, will face no shortage of questions at his confirmation hearing starting Tuesday about his alleged past racist comments, his prosecution of civil rights activists, and his views on voting rights and same-sex marriage. But civil liberties advocates say Sessions’s views on immigration concern them just as much because of the role the Justice Department plays in dealing with those who come to the United States from other countries, and because of the constitutionally questionable policies Trump has suggested that Sessions’s Justice Department would likely implement.”

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While there have been plenty of “negative vibes” about the Sessions nomination, based on his lack of sympathy for civil rights and immigrants, his “nice guy” persona during a long Senate career virtually assures his confirmation as described in this Washington Post article.

https://www.washingtonpost.com/powerpost/jeff-sessions-should-have-been-a-tough-sell-in-the-us-senate-thats-not-likely/2017/01/07/2de7c280-d44f-11e6-9cb0-54ab630851e8_story.html?utm_term=.66b34036721a

PWS

01/07/17

David Leopold Warns About Possible Five-Point Attack On Immigrants By Attorney General Sessions

http://www.huffingtonpost.com/entry/five-chilling-ways-senator-jeff-sessions-could-attack-immigrants-as-attorney-general_us_5870022ce4b099cdb0fd2ef7

“As the nation’s top lawyer, head of the immigration court, and civil rights officer, Jeff Sessions would have access to multiple tools to harm immigrants and undermine due process. Given his rhetoric and record as a United States Senator, as well as his association with anti-immigrant extremists, there is every reason to believe he would use all of them.

Here are five ways Sessions could attempt to undermine immigrants and immigration policy if confirmed as Attorney General:

Impose his radical, anti-immigrant ideology on decisions by the federal immigration courts;

Expand the number of immigrants who are deported even though they qualify for a green card or asylum;

Reduce access to legal counsel and information about immigrants’ legal rights;

Criminalize immigrants by bringing trumped up charges against ordinary workers; and

Strong arm state and local police to become Trump deportation agents

Of course, any attempt Sessions would make to undermine civil and due process rights will be met by strong litigation from the outside. But the U.S. Senate should block his confirmation from the start, as Senator Sessions is highly unqualified for this position and has showed a profound disregard for civil and human rights.”

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Sorry, David, but Jeff Sessions has the votes to be confirmed as the next Attorney General. Those who don’t like that can rant, but that’s not going to change the reality that Donald Trump won the Presidential election and the Republicans firmly control both Houses of Congress.

When you lose elections at the national and state levels, like the Democrats did, you end up with next to no leverage on appointments or policies unless you can reach across the aisle and strike a chord with at least some Republicans. Right now, it appears that all Republican Senators, and probably a few Democrats, ewill vote for Senator Sessions’s confirmation. Whatever his pros and cons, Senator Sessions appears to have had the wisdom to be polite and cordial to his colleagues and to occasionally reach across the aisle on issues of common interest. Rightly or wrongly, that seems to count for a lot when current or former Senators come up for confirmation to Executive Branch positions.

So barring a “bombshell” next week, and I must say his record has been “flyspecked” — regardless of what he put in the Judiciary Committee questionnaire — that’s unlikely. For better or worse, Senator Session’s views on a wide variety of subjects and his conduct as a public servant over many decades are a matter of public record. Nothing in that record seems to have given pause to any of his Republican Senate colleagues.

That being said, it woulds be nice to think that upon hearing some of the criticisms, Jeff Sessions will reflect on the huge differences between being a Senator from Alabama, the Attorney General of Alabama, and a U.S. Attorney for Alabama, and the wider responsibilities of being the chief law enforcement official, legal adviser, and litigator representing all of the People of the United States, not just the Trump Administration.

David is, of course, correct to focus on Attorney General Session’s vast authority over immigration. He will control a huge and critically important U.S. Immigration Court System currently sporting a backlog of more than one-half million cases and suffering from chronically inadequate judicial administration and lack of basic technology like e-filing. While there certainly is an interrelationship among civil rights, human rights, and due process in the Immigration Courts, there is every reason to believe that Attorney General Session’s biggest impact will be in the field of immigration.

If things go as David predicts, then the battle over fundamental fairness and due process in immigration policy and the Immigration Courts is likely to be fought out in the Article III Federal Courts, which, unlike the Immigration Courts, aren’t under Executive control. That will have some drawbacks for everyone, but particularly for the Trump Administration.

And, if Sessions is wise, he’ll look back at what happened when the Bush Administration tried to promote a “rubber stamp” approach to justice and due process in the Immigration Courts. The U.S. Courts of Appeals were outraged at the patent lack of due process and fundamental fairness as “not quite ready for prime time” cases were “streamlined” and thrown into the Courts of Appeals for review with glaring factual errors and remarkable legal defects. Not totally incidentally, this also dramatically increased their workload, with judicial review of immigration matters occupying a majority of the docket in several prominent circuits.

As a result, cases were returned to the Board of Immigration Appeals, who then returned them to the Immigration Courts for “re-dos,” in droves. The Courts of Appeals lost faith in the Executive’s ability to run a fundamentally fair, high quality Immigration Court System, and basically placed the Immigration Courts into “judicial receivership” until things stabilized at least somewhat. The waste and abuse of taxpayer dollars caused by this “haste makes waste” approach was beyond contemplation and, for a time, threatened to paralyze the entire American justice system.

Additionally, it would be a huge mistake for the Trump Administration to view the Bush Administration’s Immigration Court debacle as the product of “bleeding heart liberal appellate judges” appointed by President Bill Clinton. The criticism from Article III Judges cut across political lines. Two of the most outspoken judicial critics of the Bush Administration’s handling of the U.S. Immigration Courts were Republican appointees: then Chief Judge John M. Walker, Jr. of the Second Circuit and Judge Richard Posner of the Seventh Circuit. Indeed, Judge Walker is a cousin of former President George H.W. Bush.

Obviously, those who favor greater immigration enforcement won the election and are going to have a chance to try out their policies. But, “enhanced enforcement” is likely to be effective only if we have a fair, impartial, and totally due process oriented Immigration Court System.

In other words, the Immigration Courts must be a “level playing field” with judges who, in the words of Chief Justice Roberts, play the role of “impartial umpires” between those seeking to stay in our country and those seeking to remove them. Results from such a due-process oriented system would be more likely to inspire confidence from the U.S. Courts of Appeals, thereby increasing the stature of the Immigration Courts and their ability to achieve final resolutions at the initial, and most cost-efficient, level of our justice system. Due process and fairness in the Immigration Court System should be a nonpartisan common interest no matter where one stands on other aspects of the “immigration debate.”

We are about to find out what Attorney General Jeff Sessions has in mind for the U.S. Immigration Courts and the rest of the U.S. justice system. I’m hoping for the best, but preparing to assert the essential constitutional requirement for due process in the Immigration Courts if, as David predicts, it comes under attack.

Due Process Forever!

PWS

01/07/16

Read Political Satire From Andy Borowitz: “Nation with Crumbling Bridges and Roads Excited to Build Giant Wall”

http://www.newyorker.com/humor/borowitz-report/nation-with-crumbling-bridges-and-roads-excited-to-build-giant-wall

“WASHINGTON ()—As America’s bridges, roads, and other infrastructure dangerously deteriorate from decades of neglect, there is a mounting sense of urgency that it is time to build a giant wall.

Across the U.S., whose rail system is a rickety antique plagued by deadly accidents, Americans are increasingly recognizing that building a wall with Mexico, and possibly another one with Canada, should be the country’s top priority.

Harland Dorrinson, the executive director of a Washington-based think tank called the Center for Responsible Immigration, believes that most Americans favor the building of border walls over extravagant pet projects like structurally sound freeway overpasses.

“The estimated cost of a border wall with Mexico is five billion dollars,” he said. “We could easily blow the same amount of money on infrastructure repairs and have nothing to show for it but functioning highways.”

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Will the incoming Trump Administration sound the death knell for political satirists like Andy Horowitz? It’s getting pretty hard to tell the difference among “satire,” “fake news,” “made up facts,” and what passes for “truth” these days.

After all, we do actually have a a group of so-called “fiscal conservatives” in Congress lining up to throw perhaps as much as eight billion dollars (almost like “real money”) at a project that most immigration experts, whether “hardliners” or “softliners,” agree is a waste of time and money and won’t solve the problems of border security and immigration enforcement. These same legislators can’t, or won’t, come up with the money to fund things like health care, the safety net, public education, our infrastructure, or government salaries.

And, for those of us who are, probably naively, hoping that soon to be Attorney General Jeff Sessions would take his new, broader responsibilities to our country seriously, rethink some of his ill-advised anti-immigrant positions, and at least occasionally act as the “adult in the room” — counseling prudence and moderation — there is some, perhaps not unexpected, bad news.

According to the article below from today’s Washington Post, Sessions and his closest advisers apparently are working behind the scenes to “egg on” the Administration and Congress to throw taxpayer money at this futile, and nationally embarrassing, project. Could we fix the current mess in the U.S. Immigration Courts — which Sessions will run — for eight billion dollars? You bet we could!

We could build a first-class, independent, due process oriented court system that would be a source of national pride and would live up to its currently unfulfilled vision of “through teamwork and innovation be the world’s best tribunals, guaranteeing fairness and due process for all.” And, there would be plenty left over from the eight billion dollars to spend on thoughtful immigration and border enforcement if that’s what Sessions and others in the Administration and Congress really want. It should be a classic “win-win.” But, will it happen? Only time will tell. But, the early signs aren’t very promising.

https://www.washingtonpost.com/politics/hill-republicans-embrace-building-of-border-wall-despite-cost/2017/01/06/06f29b18-d432-11e6-9cb0-54ab630851e8_story.html?utm_term=.fac057dfce36

PWS

01/07/16

First “Refugee Ball” To Be Held In DC on January 17, 2017!

http://www.asylumist.com/2017/01/06/the-refugee-ball-why-we-celebrate/

“Here, though, I want to talk about what we are celebrating, and why. The “reason for the season,” as it were. The Ball takes place a day after the Martin Luther King, Jr. holiday. Dr. King famously said, the “arc of the moral universe is long, but it bends towards justice.” Of course, the arc does not bend by itself. People have to work hard to push it in the right direction.

One purpose of the Ball is to celebrate the people who help bend the arc by assisting refugees and asylum seekers: Lawyers, doctors, social workers, activists, students, and advocates.

But more than those of us who are helping refugees and asylum seekers, the purpose of the Ball is to celebrate the refugees and asylum seekers themselves; people who have worked and sacrificed and struggled for justice. Attending the Ball will be activists for democracy and peace and women’s rights, journalists who have stood up for free speech against tyrants, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, members of oppressed ethnic minorities and oppressed nationalities, interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help bend the arc of the moral universe towards justice.”

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For complete information on the Refugee Ball and how you can attend and support it, go over to The Asylumist on the above link.

PWS

01/07/17

L.A.’s Already Overwhelmed Immigration Court Could Simply Collapse Under A Trump Enforcement Initiative!

http://www.scpr.org/programs/take-two/2016/12/27/54010/la-s-busy-immigration-courts-could-swell-under-tru

“The burden on judges could also increase, as dockets swell with more cases and those on the bench come under increasing pressure to render decisions.

“I see this as a pot that is going to boil over and scald everybody,” said Bruce Einhorn, a former immigration judge in Los Angeles. “I just don’t see pragmatically how you can almost double the number of cases without spending huge amounts of money to try to accommodate the dockets of the cases already on schedule and those that will be brought into the system.”

The backlog of cases is not new. It has steadily increased over the past decade — even as fewer immigrants have been apprehended along the Southwest border in recent years. In response, the Executive Office for Immigration Review, the agency that oversees the courts, has added more judges, including one to Los Angeles in November. It’s also prioritized juvenile cases in an effort to speed up cases of migrant youth.”

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The full article, at the link, contains a 9-minute audio segment. Does anyone seriously think that adding one Immigration Judge in Los Angeles or “prioritizing” juvenile cases will solve this mess?

Actually, the misguided prioritization of juvenile cases, many of them unrepresented, over longer pending cases of represented individuals is exactly the type of “Aimless Docket Reschuffling” that has created a practically insurmountable backlog in the Immigration Courts, notwithstanding a modest decline in new case receipts and a modest increase in resources. The inability of the DOJ and EOIR to establish an efficient merit hiring system for new Immigrstion Judges and poor planning for additional courtrooms to house new judges has also aggravated the problem.

PWS

01/05/17

Legal Representation Funds & Accredited Representatives — A Smarter Approach For “Sanctuary Cities?”

http://thehill.com/blogs/pundits-blog/immigration/312909-sanctuary-cities-have-a-new-cheaper-way-to-help-undocumented

Nolan Rappaport writes in The Hill:

“A few days after the Chicago City Council approved Mayor Emanuel’s Legal Protection Fund, Los Angeles officials announced that they had created a legal defense fund too. With help from philanthropists, Los Angeles established a $10 million fund to provide legal assistance for the city’s undocumented immigrants who are placed in removal proceedings.

These funds are an extension of their sanctuary city status to protect undocumented immigrants.

Chicago passed such an ordinance four years ago which provides that police can only give federal immigration officers information on undocumented immigrants that have arrest warrants out on them or are convicted criminals. This only applied to Chicago.

California, Connecticut, New Mexico, and Colorado have made their entire states immigrant sanctuaries.

Point No. 4 in President-Elect Trump’s 10-Point Plan to Put America First calls for an end to sanctuary cities, which presumably will be done by threatening to withhold federal funds from cities that refuse to cooperate with his administration’s enforcement program.

Mayor Emanuel’s Legal Protect Fund may be a more effective way to protect undocumented immigrants from deportation and it should avoid that threat.

The benefit of legal representation is illustrated by TRAC statistics which show that the likelihood of success with an asylum application is much higher with representation [chart omitted].”

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New York City has also done some outstanding work on providing representation to needy migrants in Immigration Court. In the full article, Nolan also points out that EOIR’s recently revised program for non-attorney Accredited Representatives — now administered by the Office of Legal Access Programs (“OLAP”) rather than the Board of Immigration Appeals (“BIA”) — presents important opportunities for improving and expanding pro bono representation.

Additionally, Professor Michele Pistone of Villanova Law School is developing a revolutionary “modular training program” for Accredited Representatives that could dramatically increase both the number and quality of those willing to serve nonprofit organizations in this currently underutilized capacity.

Looks like lots of creative thinking combined with effective action is going on among the members of the immigration pro bono community. Providing and facilitating representation is is probably the most important aspect of providing due process in Immigration Court. In stark contrast to these efforts by the non-Federal sector, the “prioritization” of cases of recently arrived families by the U.S. Department of Justice has seriously impeded due process in contravention of the mission and vision of the U.S. Immigration Courts.

PWS

01/06/17

The Numbers Are In — DHS FY 2016 Enforcement Stats Confirm that Obama Administration is #1 In Removals!

http://immigrationimpact.com/2017/01/04/deportation-numbers-2016/

Joshua Breisblatt writes on Immigration Impact:

“Last week, the Department of Homeland Security (DHS) issued its Fiscal Year (FY) 2016 immigration enforcement data which, coupled with the previous years’ totals under the Obama Administration, show that the total number of removals from FY 2009 to FY 2016 totaled more than 2.7 million. Simply stated, President Obama has deported more people than any other president in U.S. history.

However, underneath those numbers belie some important lessons about the changing dynamics of who is showing up at the U.S. border and how a November 2014 enforcement priorities memo shaped the number of people deported from the interior of the nation.

. . . .

This means, more would-be-asylees are arriving at the U.S. border, rather than economic migrants as in years’ past. Yet, many are being denied asylum or put through expedited deportation processes, both unworthy of the nation’s commitment to protect those in need.

Also of note, the number of individuals picked up and deported from the interior of the country is on the decline, likely due to the 2014 enforcement priorities memo that sought to avoid deporting individuals who posed no threat and have strong economic and community ties in the U.S.”

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How much enforcement is enough? Never enough, according to some. Others disagree and think we’re going way overboard. As the Trump Administration is probably going to find out, “immigration enforcement” is more often than not a “can’t win” political proposition.

PWS

01/04/17

Is Trump’s Plan To Remove 3 Million “Criminal Aliens” Achievable?

https://www.washingtonpost.com/opinions/why-trumps-plan-to-deport-criminal-noncitizens-wont-work/2017/01/03/b68a3018-c627-11e6-85b5-76616a33048d_story.html?utm_term=.4810f9c58fbd

“No,” says Professor and Immigration Practitioner Kari Hong of Boston College Law School in this op-ed in the Washington Post:

“If Trump truly wants to focus on drug dealers, terrorists, murderers and rapists, he should call on Congress to restore immigration law’s focus on those whom prosecutors and criminal judges determined were dangerous in the first place — people who were sentenced to five years or more in prison. That’s what the law used to be, before it was changed in 1996 to cover many more crimes.

Instead of penalizing immigrants for minor crimes, immigration law needs to separate contributing immigrants from their non-contributing peers. Those who pay taxes, have children born in the United States, serve in the military, work in jobs American citizens will not take or help those around them need a path to legalization. Those who cause more harm than good should be deported. Restoring proportionality and common sense to immigration law would certainly help make America great again.”

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Go over to ImmigrationProf Blog and the Washington Post at the above link and get the whole story.

PWS

01/04/17

The U.S. Immigration Court’s Vision Is All About Best Practices, Guaranteeing Fairness, And Due Process — 7th Circuit’s Judge Posner Thinks It’s A “Farce” — Blames Congressional Underfunding!

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2016/12/31/let-39-s-close-out-2016-with-a-posner-dissent-chavarria-reyes-v-lynch.aspx?Redirected=true

“POSNER, Circuit Judge, dissenting. This case involves a typical botch by an immigration judge. No surprise: the Im‐ migration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads. See, e.g., Julia Preston, “Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle,” NY Times, Dec. 1, 2016, www.nytimes.com/2016/12/01/us/deluged‐immigratio n‐courts‐where‐cases‐stall‐for‐years‐begin‐to‐buckle.html?_r =0 (visited Dec. 30, 2016).”

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Go on over to Dan Kowalski on LexisNexis Immigration Community and read the full opinion and Judge P’s full dissent in Chavarria-Reyes v. Lynch.

Also, read Julia Preston’s article in the NY Times, cited by Judge Posner, quoting (and picturing) me here:

http://www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases-stall-for-years-begin-to-buckle.html

PWS

01/02/17

As Federal Hiring Freeze Looms, The Chickens Might Be Coming Home To Roost At The Beleaguered U.S. Immigration Court System — More than 20% Of Judicial Vacancies Unfilled!

https://www.washingtonpost.com/powerpost/federal-agencies-rush-to-fill-job-openings-before-trump-takes-office-jan-20/2016/12/30/de0c1030-cdd8-11e6-a747-d03044780a02_story.html?hpid=hp_local-news_trumphiring-940pm%3Ahomepage%2Fstory&utm_term=.81ad4681c3c9

“Leaders at these agencies are filling open positions with transfers and outside hires and are making internal promotions before Trump takes office Jan. 20, according to internal documents and interviews.

The hiring could increase tensions between the Trump transition team and the Obama administration — a relationship that has grown worse in recent days due to disagreements over how the United States should handle its relationship with Israel and the issuance of new sanctions against Russia over its role in hacking incidents tied to the election.

Sean Spicer, the incoming White House press secretary, said in an interview late Friday that an agreement was struck in November that no new hires would be made after Dec. 1.

“After the election, the current administration notified us there would be a hiring freeze as of Dec. 1,” he said. “The understanding was that there would be a full accounting of anyone put on the payroll after then.”

White House Office of Management and Budget spokeswoman Shannon Buckingham said in an email early Saturday, “On Dec. 7, the administration imposed a moratorium on the hiring of senior executives within the civil service, known as the Senior Executive Service or SES.”

“This policy is consistent with previous transitions and is intended to ensure that incoming agency heads have the opportunity to make or approve executive hiring decisions that will impact the agency’s performance in the next administration,” she added.”

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As I have mentioned before, the U.S. Department of Justice’s (“DOJ’s”) Executive Office for Immigration Review (“EOIR”), which administers the U.S. Immigration Court System, is on the verge of leaving at least 78 U.S. Immigration Judge positions unfilled at the end of the Obama Administration. As of November 8, 2016, EOIR had filled just 296 of its authorized and funded 374 Immigration Judge vacancies. However, with a number of year-end retirements among the Immigration Judge Corps, the actual number of vacancies is almost certainly exceeds that previously announced.

Given that the U.S. Immigration Courts are struggling with a backlog of well over 500,000 cases — more than two years of work for 296 Immigration Judges, even assuming that they were all trained and fully productive, and that no new cases were filed — the lack of urgency in filling these judicial positions seems unusual, to say the least.

Over the past two Administrations, the DOJ has turned a Civil Service hiring system into a multi-tiered bureaucratic quagmire resulting in a hiring cycle that in too many cases substantially exceeds the much-criticized Senate confirmation process for Article III Federal Judges. But, the multiple layers of bureaucracy haven’t actually improved hiring quality.

Conspicuously absent from the process is meaningful input from anyone who actually practices in, appears before, sits on, or “consumes” the “judicial product” of the Immigration Courts (like judges of the U.S. Courts of Appeals who review final decisions from the Immigration Courts). Not surprisingly, the results of this opaque bureaucratic exercise have been heavily weighted toward new Immigration Judges from government backgrounds, to the disadvantage of those with private practice, academic, or non-governmental organization experience.

While the claimed “complexity” of Federal background checks and security clearances sometimes is blamed for the delays, that is, in plain terms, “poppycock.” The clearance process goes exactly as fast as the Attorney General tells it to go. Those of us who are familiar with the process, and have actually participated in it, know that it is a series of largely ministerial tasks, which with proper “motivation” can be accomplished in a matter of days, rather than months. The idea that any cabinet officer normally would wait a year or more to bring on needed talent from the private sector to fill a critical senior position is simply preposterous. In the past, senior level positions at EOIR and the DOJ, including Immigration Judges and Appellate Immigration Judges who serve on the Board of Immigration Appeals, were filled with candidates from outside the government in a fraction of the time IJ hiring currently takes.

As noted in the Washington Post article, the Trump Administration has announced an intention to impose an immediate hiring freeze. Immigration Judge vacancies might, or might not, be exempted as “public safety positions.” Nobody knows for sure.

U.S. Immigration Judges are senior Civil Service officials, with their own senior pay scale established by Congress. Immigration Judges certainly are equivalent to the Senior Executive Service positions that the Obama Administration appears to have agreed to informally freeze as of December 1, 2016, according to the article. Even if DOJ belatedly tries to rush new appointments through prior to January 20, it is far from clear that the incoming Administration would be legally bound to honor such last minute appointments, let alone outstanding offers.

The chickens might be coming home to roost for the DOJ’s and EOIR’s lackadaisical administration of the U.S. Immigration Courts. And, at this point, it could be too late to solve this self-created disaster. If so, in addition to those who might reasonably have expected to receive Immigration Judge appointments, the real losers will be due process and the American people.

PWS

12/31/16

In Case You Missed It: It’s A Rainy Night In Georgia, Particularly If You Are An Asylum Applicant!

https://www.themarshallproject.org/2016/12/12/america-s-toughest-immigration-court?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20161212-654#.bKZwzlP91

Some of you have seen this before. But, my good friend and former Georgetown Law colleague Heidi Altman of the National Immigrant Justice Center sent me this article by Christie Thompson of The Marshall Project which describes the dismal atmosphere for asylum applicants and their attorneys at the U.S. Immigration Court located at the Stewart County Detention Center in Lumpkin, Georgia. Christie interviewed me for the article. Here an excerpt:

“‘When people aren’t represented, how can you do a fair job?’ says Paul Wickham Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals. Isolating a few judges to see only detained cases, Schmidt says, also creates a culture where granting relief is the exception, not the rule. Locating detention centers in rural areas ‘seems more or less designed to discourage people from getting meaningful representation and fighting to stay in the U.S.’”

More on the tough situation for asylum seekers in the U.S. Immigration Courts located in Georgia in the preceding post.

“‘Rainy Night in Georgia’ is a song written by Tony Joe White in 1967 and popularized by R&B vocalist Brook Benton in 1970.” See Wikipedia link below:

https://en.wikipedia.org/wiki/Rainy_Night_in_Georgia

PWS

12/29/16

A Christmas Wish — Protect Children Seeking Refuge — Let Them Out of Jail — Get Them Lawyers — Treat Them As If They Were Ours — Because They Are

http://immigrationimpact.com/2016/12/23/wish-holiday-season/

In this article which I found on Immigration Impact, Katie Shepard says:

“The 19 children who will likely be spending the holidays in detention range in age from three to fifteen-years-old. In fact, just last week, the youngest child being held in the Berks detention facility turned three. This little boy fled Honduras with his mother after being targeted by the gangs and threatened with kidnapping and violence. He has spent more than half his life in detention.

Imagine going through such a harrowing journey to then have those you’ve asked to protect you, fail you. I don’t believe this nation can or should allow the most vulnerable among us to be held for prolonged periods, robbed of their access to a fair and just process, and left without protection. We can and must do better.

My wish this holiday season is that we find a way to do right by these families. My wish is that they, like me and many of you, will be able to live safe and happy lives with the people they love.”

I had similar thoughts. During the Christmas Eve service at our church, we offered the following prayer: “Tonight we give thanks for every child among us. Each new birth — regardless of circumstances — reminds us of the preciousness of life, the potential of tomorrow, the promise of God.”

We say these words, but our country is falling short in its humanitarian and human obligation to protect vulnerable children. We treat them as statistics, a “border surge,” an “enforcement problem,” a plague that should be deterred and discouraged. In plain terms, we seek to dehumanize the most vulnerable and needy humans among us. We detain them, expedite their cases, and tell Federal Courts that they can represent themselves in complicated, life determining, legal proceedings that baffle many smart attorneys, judges, and scholars. Where is the mercy, compassion, kindness, humility, and championship of the downtrodden shown by Christ?

As I have previously said in my own op-ed:

“Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to ‘stem the tide.’ It is time to demand an immigrant justice system that lives up to its vision of ‘guaranteeing due process and fairness for all.’ Anything less is a continuing disgrace that will haunt us forever.”

You can read my full op-ed which has been published in LexisNexis Immigration Community by clicking on this link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2016/10/18/saving-child-migrants-while-saving-ourselves-hon-paul-wickham-schmidt-ret.aspx?Redirected=true

Its is also posted on the index and information toolbar of this Blog.

PWS

12/26/16

Former Deputy Attorney General Heymann Slams DOJ Handling of Criminal Case Arising From Iowa Immigration Raid

https://www.washingtonpost.com/opinions/107-former-justice-officials-think-this-case-was-handled-unjustly-doj-must-act/2016/12/26/71203530-c6e6-11e6-bf4b-2c064d32a4bf_story.html?hpid=hp_no-name_opinion-card-e%3Ahomepage%2Fstory&utm_term=.39a0e3fb838c

An unusually harsh criticism of the Justice Department and Attorney General Loretta Lynch in this Washington Post op-ed by Phillip Heymann, who was the Deputy AG during the Clinton Administration. The case was generated by a controversial immigration raid on a Kosher Meat plant in Iowa that netted hundreds of undocumented workers and resulted in the business’s bankruptcy. Heymann represents the views of 107 former DOJ officials, including former Attorneys General.

PWS

12/26/16

Trump Administration Will Have Huge Influence on Federal Courts — Particularly the U.S. Immigration Court

https://www.washingtonpost.com/politics/trump-to-inherit-more-than-100-court-vacancies-plans-to-reshape-judiciary/2016/12/25/d190dd18-c928-11e6-85b5-76616a33048d_story.html?hpid=hp_rhp-top-table-main_trumpjudges805p:homepage/story&utm_term=.3eb2c51133dc

According to this article from today’s Washington Post, the incoming Trump Administration is preparing to fill more than 100 lifetime Federal Judicial appointments in addition to an existing vacancy on the Supreme Court. That’s almost twice the number of vacancies that were available to the incoming Obama Administration eight years ago. The article points out that since these appointments require Senate confirmation, Democrats might have some bargaining power. But, with Republicans in the majority, that’s likely to be quite limited.

However, there might be an even bigger opportunity available for the incoming Administration — reshaping the U.S. Immigration Court System for many years to come. Plagued by a self-created ponderously glacial selection and hiring process, and a badly outdated and ineffective court structure and administration, the Obama Administration is on track to leave nearly 100 out of the just under 400 authorized U.S. Immigration positions “on the table.” Additionally, there currently are two vacancies on the critically important Immigration Appeals Court (known as the “Board of Immigration Appeals”), which is effectively the “Supreme Court” of immigration law, with authority to decide tens of thousands of appeals annually and to set binding precedents for our nation’s more than 50 U.S. Immigration Courts. Beyond that, a significant number of the most experienced Immigration Judges are “baby boomers” who are currently eligible to retire or will become eligible shortly. For most of the Obama Administration, Immigration Judge hiring has barely exceeded the retirement replacement rate.

The bulk of the currently unfilled vacancies were relatively recently authorized by a bipartisan Congressional effort. But, not so recently that they could not have been filled by a management process that treated them as what they are — probably the most important large group of senior career Civil Service positions in Government and certainly within the U.S. Department of Justice, the repository for the Immigration Courts. Beyond helping to authorize the additional positions, however, Congressional Democrats have paid scant attention to the public unraveling of our Immigration Court system during the past eight years.

With over 500,000 pending cases, the Immigration Court System actually has a larger caseload that the entire U.S. District Court System — Civil and Criminal Dockets — with only about 60% of the authorized number of judges. Moreover, unlike U.S. District Court Judges, who are appointed by the President for life with Senate confirmation required, U.S. Immigration Judges are civil servants appointed by the Attorney General, and they serve at his or her pleasure. Consequently, Democrats cannot point the collective finger at Republicans for the high vacancy rate and the dismal state of justice in our largely dysfunctional Immigration Court System. Republicans generally have supported more resources for the overburdened Immigration Courts, and the hiring process has been within the sole control of the Obama Administration’s Department of Justice.

Assuming confirmation, new Attorney General Jeff Sessions potentially could select approximately 25% of the Immigration Judiciary, with more down the road. No Senate confirmation is required, and the new Attorney General would not be bound to follow the current hiring practices.

Because Due Process — the Immigration Courts’ one and only mission — should be a nonpartisan, nonpolitical issue, I hope that Attorney General Sessions will establish an efficient, strictly merit based hiring system that will be transparent and provide opportunity for meaningful input and participation from all segments of the immigration community, including practitioners, clinicians, and non-governmental organizations, as well as government entities involved in the administration of our immigration laws. For example, the board-based merit selection processes used for U.S. Magistrate Judges and U.S. Bankruptcy Judges have won widespread acclaim for putting professional qualifications and demonstrated excellence before partisanship.

But, if that doesn’t happen, and Democrats don’t like the results, they will have only themselves to blame for failing to pay attention and make the needed administrative and structural improvements to our critically important Immigration Court System over the past eight years.

PWS

12/26/16

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