Enforcement – Page 261 – immigrationcourtside.com

Washington Post: U.S. & Mexican Officials Allegedly Flout U.S. Asylum Law (And International Treaties) At Southern Border!

https://www.washingtonpost.com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.html?utm_term=.4f9b23834fc7

Joshua Partlow writes in the Washington Post:

“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”

The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.

The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.

The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”

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

The law is very clear: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).

Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.

Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.

Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.

Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?

It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.

Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”

We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.

Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?

PWS

01/17/17

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

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

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

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

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

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

. . . .

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

. . . .

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

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

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

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

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

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

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

PWS

01/17/17

WSJ Editorial: Keep DACA, Can DAPA — Half Right Is Better Than All Wrong — But, Why Not Do The “Smart” Thing And Keep Them Both?

http://www.wsj.com/articles/trumps-immigration-chance-1484266731

“Donald Trump will have a busy first day repealing President Obama’s executive orders, and here’s a suggestion to lighten the work load and win some goodwill in the bargain: Don’t revoke the Deferred Action for Childhood Arrivals immigration order.

DACA is the 2012 order granting temporary safe harbor for illegal immigrants who arrived as minors with their parents. That order is distinct from the 2014 Deferred Action for Parents of Americans (DAPA) order, which exempts from deportation some four million illegal immigrants.

Mr. Trump should repeal DAPA, a sweeping usurpation of Congress’s power to write immigration laws. The Fifth Circuit Court of Appeals blocked DAPA at the request of 26 states, and the Supreme Court voted 4-4 to uphold the injunction. DAPA was among Mr. Obama’s most cynical executive actions, at once poisoning the chances for serious immigration reform while trying to pit minorities against Republicans for political purposes.

DACA is also an executive action, but its repeal now would harm innocent men and women. The order is limited to children brought illegally to the U.S. before the age of 16 who are attending school or have graduated, and who have continuously resided in the U.S. since at least 2007. About 741,000 immigrants have applied for DACA’s reprieve, which lets them obtain work permits that must be renewed after two years for a nontrivial fee of $465.

DACA applicants must undergo background checks, and they cannot have a felony or serious misdemeanor record. They can’t collect federal benefits or vote. DACA essentially offers the right to work and pay taxes in the U.S., and many applicants have served in the military. If DACA is repealed, Homeland Security’s tracking will end as tens of thousands slip into the shadows to avoid deportation to “home” countries where they are strangers.

The Fifth Circuit dismissed a legal challenge to DACA by Kansas Secretary of State Kris Kobach for lack of standing. We’d prefer if Congress codified DACA, and a bipartisan coalition of Senators wants to do so. This could be included if legislation moves this year to tighten immigration enforcement.

The main issue is fairness, as Mr. Trump has recognized. He told Time magazine in December that these young illegals were “brought here at a very young age. They’ve worked here, they’ve gone to school here.” He added that “they’re in never-never land because they don’t know what’s going to happen” and “on a humanitarian basis, it’s a very tough situation.” He’s right, which is why we hope he’s willing to forbear on DACA while a legislative solution can be worked out.

No one doubts Mr. Trump’s resolve to reduce illegal immigration, and repealing DAPA would honor that campaign promise. But minors brought to the U.S. illegally aren’t responsible for that decision. Giving them a deportation reprieve would show that Mr. Trump’s immigration policy is aimed at enforcing the law, not at punishing minorities or any ethnic group. We can’t think of another early decision that would send a comparable message of inclusion and largeness of presidential spirit.”

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

I agree on DACA, disagree on DAPA. The reasons for going forward and implementing the DAPA program are almost as strong as for retaining DACA.

DAPA’s proposed beneficiaries — parents of U.S. citizens and green card holders — probably aren’t going to be removed anyway under the DHS priorities as initially described by soon to be DHS Secretary Gen. John Kelly. They need to be taken off overcrowded Immigration Court dockets if the Trump Administration wants to pursue its version of “criminal removal” as a priority (although I note that this is essentially the same priority as the Obama Administration had). Instead of just leaving the DAPA folks “in limbo,” why not get them registered, documented, checked for criminal record, working legally, and make it easier for them to pay taxes, without handing out green cards or any other type of permanent status? It would be good for America.

PWS

01/13/17

Good News For Dreamers? — Speaker Paul Ryan (R-WI) Recognizes Moral, Human, And Practical Imperatives In Retaining DACA!

https://www.washingtonpost.com/blogs/plum-line/wp/2017/01/13/in-remarkable-exchange-with-undocumented-mom-paul-ryan-exposes-cruelty-of-trumpism/?utm_term=.01a68f26de2a

As reported by Greg Sargent in his “The Morning Plum” in today’s Post, speaker Ryan had an exchange with an undocumented mother which got right to the heart of the human beings whose lives are in play in the DACA debate:

“In a remarkable exchange with an undocumented mother last night at a CNN town hall, House Speaker Paul Ryan strongly suggested to her that the revocation of protections for the DREAMers brought here as children will not be carried out. That’s newsworthy on its own. But beyond that, the exchange also exposed the cruelty of stepped-up mass deportations for many other low-level undocumented offenders:

It’s a powerful moment, but the policy details lurking underneath the emotion are also extremely important. A woman brought here illegally as an 11-year-old child “through no fault of her own,” as CNN’s Jake Tapper put it, asked whether she and “many families in my situation” should face deportation. “No,” Ryan responded. After noting her love for her daughter, Ryan added:

“What we have to do is find a way to make sure that you can get right with the law. And we’ve got to do this so that the rug doesn’t get pulled out from under you and your family gets separated. That’s the way we feel. And that is exactly what our new, incoming president has stated he wants to do….I’m sure you’re a great contributor to [your] community.”

This might be a reference to the fact that Trump recently seemed to back off his pledge to reverse President Obama’s executive action protecting DREAMers from deportation, saying instead that “we’re going to work something out” for them. Indeed, under subsequent questioning from Tapper, Ryan explicitly said he and the Trump transition team were working on a “good, humane solution” for the hundreds of thousands currently benefiting from that executive action.”

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

I hope that Speaker Ryan, a powerful person on the Washington scene, will be able to follow through on persuading President Trump and his GOP Congressional colleagues to “do the right thing” here. Combined with soon to be DHS Secretary Gen. John Kelly’s non-polemical statements on DACA and enforcement priorities, there seems to be some hope of a reasonable solution to this difficult human situation.

PWS

01/13/17

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

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

From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him. I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.” To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t. But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views. I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.” That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions. It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned. In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws. And, throwing them in detention isn’t going to deter them either — that’s been proved. But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important. It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations. But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle. Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow. It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about. They also won’t satisfy those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach. To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

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

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

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

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

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

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

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

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

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

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

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

PWS

01/11/17

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

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

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

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

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

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

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

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

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

PWS

01-11-17

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

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

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

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

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

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

By Paul Wickham Schmidt

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

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

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

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

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

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

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

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

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

PWS

01/10/17

House GOP Pushes To Punish Sanctuary Cities — DC Establishes Legal Defense Fund To Aid Migrants

http://www.huffingtonpost.com/entry/gop-sanctuary-cities-funds_us_58730858e4b02b5f85898d46

“House Republicans are moving swiftly to punish so-called sanctuary cities, and have already introduced at least three measures to block federal funds for municipalities or college campuses that limit their cooperation with federal officials on deporting undocumented immigrants.

Rep. Lou Barletta (R-Pa.) introduced HR 83, known as the Mobilizing Against Sanctuary Cities Act, last week to strip federal funding from such jurisdictions. As mayor of Hazleton, Pennsylvania, Barletta gained a national profile for approving ordinances aimed at driving out undocumented immigrants, most of which were found unconstitutional.

“Too many mayors and local governments think that they are above federal law and place their own ideology ahead of the safety of their residents,” he told Hazleton’s Standard-Speaker. “One of the principal duties of the government is to protect its citizens, and the idea of sanctuary cities runs completely counter to that responsibility.”

Supporters of sanctuary cities argue, however, that they improve public safety by making undocumented people more willing to come forward if they witness or are victims of a crime, and sbay it can be costly or even illegal to hold arrestees longer based on Immigration and Customs Enforcement’s requests.”

Meanwhile, the Washington Post reports that DC will,be setting up a Legal Defense Fund for migrants residing in the District:

https://www.washingtonpost.com/local/dc-politics/dc-will-go-beyond-sanctuary-create-legal-defense-fund-for-illegal-immigrants/2017/01/09/0d6c7adc-d68e-11e6-9f9f-5cdb4b7f8dd7_story.html

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

In a previous post, Nolan Rapport suggested that setting up a Legal Defense Fund not only helps the system function but also represents a “smarter approach” to helping migrants than a policy of non-cooperation with Federal immigration enforcement. Here’s a link to Nolan’s post:

http://wp.me/p8eeJm-4W

PWS

01/09/17

Mexico Searches For Equilibrium With New Administration!

https://www.washingtonpost.com/world/the_americas/top-mexican-official-warns-of-a-new-era-in-relations-with-the-us-under-trump/2017/01/09/71658602-8bed-47c4-9ebe-7bd04d5dd631_story.html

“In his speech Monday, Videgaray asserted Mexico’s importance to the United States and vowed to defend his country’s sovereignty. As examples of the benefits of trade and immigration, he cited the close relationship between auto plants in Mexico and Michigan, Mexican companies that have invested in Dallas, and the key role played by Mexican workers in the milk industry in Wisconsin.

Trump has criticized American companies for moving factory jobs to Mexico, and threatened to impose a “border tax” on firms that make products there bound for U.S. markets. Ford recently announced that it had canceled plans for a $1.6 billion plant in Hermosillo, Mexico, after Trump’s repeated criticism of Ford and other companies. The Mexican government is concerned that it will lose manufacturing jobs due to measures proposed by Trump.

“We are going to negotiate with great self-confidence; without fear, knowing the economic, social and political importance that Mexico has for the United States, and we are going to negotiate with intelligence and common sense,” Videgaray added.

He said he wanted to make it clear that “these millions of Mexicans who have emigrated to look for work are not as they have been described — criminals — but they are productive people who represent in the majority of cases the best of Mexico.”

PWS

01/09/17

My Upcoming Interview With David Noriega On Vice News/HBO

I did a taped interview today with Vice News Reporter David Noriega. It was done in the freezing cold and wind outside the U.S. Department of Justice at the corner of 9th and Pennsylvania — but, it probably would have been warmer outside Lambeau Field (“Go Pack Go”). It’s possible the only “takeaway” will be “Man you guys sure look cold out there!” It was worse for David, who hails from sunny California, than those of us born and raised in the frigid winters of Wisconsin.

The subject is why the Attorney General’s role in administering the U.S. Immigration Court system is so critically important to the hundreds of thousands of individuals who depend on that system for due process and fair treatment, to the many Immigration Judges and support staff who have dedicated their professional lives to making the system work, and to our nation and its future.

The interview is scheduled to air tomorrow night, Tuesday, January 10, 2017, at 7:30 PM EST, on the “Vice News” show on HBO (which we don’t happen to have on our cable package). But, I encourage everyone with HBO access to tune in and see how David and I did, elements notwithstanding.

PWS

01/09/17

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.”

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

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.”

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

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.”

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

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.”

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

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

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts: