"The Voice of the New Due Process Army" āāāāā Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a āDelta Ondine,ā a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! š¶ To see our complete professional bios, just click on the link below.
An Immigration and Customs Enforcement assistant field office director arrests an Iranian immigrant in San Clemente, California, in 2017.
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You wake up early one morning to realize thatĀ men wearing bulletproof vestsĀ have come to your home.Ā They immediately demand to take you with them. They transport you thousands of miles away to a prison-like facility and tell you that you must stay there until a judge ā who appears on a video screen ā decides whether you can go back to live with your family or be directly transported to another country. You go through this process alone, with no ability to speak with an attorney or anyone who can give you knowledge of your legal rights or even help you make sense of what is happening.
This will soon be the reality for the tens of thousands of individuals who are arrested and held in detention facilities by Immigration and Customs Enforcement. Earlier this month, the Department of Justice effectively decided to suspend the Legal Orientation Program, citing concerns about cost-effectiveness.
The Department of Justice established the LOP in 2003 to improve the efficiency of the immigration courts by helping unrepresented detained immigrants work with an attorney to prepare their cases. The program operates through 18 nonprofit organizations across the country and has a budget of just under $8 million. At least once a month, these organizations bring both paid attorneys and volunteers from the community to over 38 detention centers to educate detained immigrants about their rights through group orientations, individual consultations and self-help workshops.
These interactions with attorneys, along with the legal resources that the program makes available, help detained immigrants make informed decisions about their cases and prepare for their court hearings. LOP organizations also refer detained individuals to pro bono attorneys when they are unable to represent themselves or would benefit from direct legal representation.
JOHN MOORE VIA GETTY IMAGES
A father and daughter from Honduras wait for assistance at the Immigrant Respite Center after they were released from U.S. immigration officials on Feb. 23 in McAllen, Texas.Ā
The men, women and children who LOP assists cannot search for help from attorneys on their own ā many are confined in detention centers located hours from a major city ā and the government does not provide them an attorney. Without LOP staff and volunteers physically visiting detention centers, detained immigrants must resort to calling attorneys through a phone system that either requires purchasing a phone card (something that is difficult when you have no access to money, because you are detained) or hopingĀ law offices will answer collect calls. As a result, 84 percent of detained individuals do not have legal representation in deportation proceedings.
For over 50,000 detained immigrants every year, LOP organizations have provided the only guaranteed source of legal information and assistance in making informed decisions about their deportation proceedings. Because LOP organizations can also communicate with pro bono attorneys on the outside, this program also plays a crucial role in connecting detained individuals to legal representation. Represented individuals areĀ more than twice as likely to avoid deportation, meaning LOP providers are directly responsible for helping detained immigrants avoid being deported, being torn away from their families and suffering the collateral consequences of being forced out of the country, which can include death.
In my visits to immigration courts across the country as a volunteer attorney, I have witnessed firsthand how the LOP volunteers serve as a rare lifeline for immigrants in detention. Each visit, I play my part in the same heartbreaking scene: I arrive with other volunteer attorneys to find an empty room with a TV screen. We are connected to a feed at one of the countryās many detention facilities, located in remote towns that would take hours to physically reach.
There are a number of immigrants waiting patiently to speak with us, sometimes a handful, sometimes over a dozen, almost all without a lawyer to represent them. Many of them do not understand why they have been in immigration custody or what was going to happen during the hearing that day. We have just a short time before they appear in court, giving us on average less than 10 minutes to attempt to answer the dozens of questions they have about their immigration cases.
At the end of the conversation with every individual, we always inform them that they should speak more in-depth with a volunteer through the Legal Orientation Programās monthly visit. During the hearing, the immigration judge parrots the same advice: that they should to speak with LOP volunteers for more help with their questions, to help them find an attorney and to prepare them for the next hearing.
The DOJ would effectively eliminate the only guaranteed way that detained immigrants can access guidance in a high-stakes legal setting.
Opponents of the Legal Orientation Program argue that the program is āduplicativeā because immigration judges are supposed to advise immigrants of their rights during their hearings. First, we should give up the pretense that someone without a law degree can understand one of the most complex areas of law after hearing it for the first time in the middle of a courtroom proceeding.
This argument alsoĀ ignores the most important function of the Legal Orientation Program for immigrants and for defenders of the larger justice system in the U.S.: This program helps people find an attorney. An immigration judge, as opposed to an LOP volunteer, cannot, by definition, provide advice to the immigrant, cannot represent them in their hearings, and cannot facilitate communication with other attorneys who may provide them representation. The Legal Orientation Program fulfills these needs, which are pivotal to the functioning of a just legal system.
By cutting off individualsā access to legal information through the Legal Orientation Program, and forcing those who are locked up during their deportation proceedings to get all information about their rights from an ostensibly neutral arbiter, the DOJ would effectively eliminate the only guaranteed way that detained immigrants can access crucial, reputable guidance in a high-stakes legal setting. This will affect the lives of everyone whom the current administration wants to detain, including those fleeing persecution, children, pregnant women, parents who are long-term residents of this country, people with medical conditionsĀ and even U.S. citizens.
In effect, without access to an LOP volunteer and attorney, almost anyone who is detained by ICE is virtually guaranteed to be deported, with no effective defense against a government attorney or an immigration judge, who has been mandated by this administration to close deportation cases as quickly as possible, fair day in court be damned.
If the Department of Justice moves to end the Legal Orientation Program for good, it will strip away the last shred of evidence that immigrants have a right to due process and will eliminate any semblance of justice left in the immigration system. The immigration courts will effectively become a sham, in utter betrayal of our countryās rich immigrant heritage.
Em Puhl is a San Joaquin Valley Law Fellow at the Immigrant Legal Resource Center, and a former attorney adviser at the Executive Office for Immigration Review in the Department of Justice.
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Shortly after Em’s article came out, Sessions yielded to bipartisan pressure from Congress and “temporarily reinstated” the LOP. But, his so-far aborted attempt to destroy the LOP remains the most bone-headed, dishonest, and downright despicable attack yet on what little remains of the pretense of justice in our U.S.Immigration Courts by Sessions.
As a former U.S. Immigration Judge, I can testify, as can almost all of my former colleagues, DHS Assistant Chief Counsel, and anyone else actually familiar with and working in the Immigration Court system that the LOP probably provides the best “value for the dollar spent” of any program in EOIR.
Over the past month, Robert Muellerās investigation into possible collusion between Donald Trumpās 2016 campaign and mother Russia has kicked into high gear. Also over the past month, Donald Trumpās legal team, which wasnāt comprised of the countryās most brilliant legal minds to begin with, has completely fallen apart. John Dowd, the presidentās personal lawyer, decided heād had enough and quit. Ty Cobb, who famously claimed the Russia probe would be over by Thanksgiving 2017, is basically persona non grata. Joseph diGenova, who peddled a conspiracy theory that the F.B.I. and D.O.J. were in cahoots to frame Trump, decided at the last minute he didnāt want to be associated with such an epic s–t show. As former Obama general counsel Bob Bauer told my colleague Abigail Tracy, āLike so much else around Trump, [the shake-up] is marked by confusion, a lack of consistency, and an apparent reflection of the presidentās uncontrolled impulses.ā
At one point, it looked like the ex-Miss Universe owner was going to have to represent himself. But on Thursday, blessing of blessings, the presidentās fairy godmother intervened:
Former New York mayor Rudolph W. Giuliani, a combative former prosecutor and longtime ally of President Trump, told The Washington Post on Thursday that he has joined the presidentās legal team dealing with the ongoing special counsel probe.
Giuliani, like Trump, is Central Park Five truther, told the Post, āIām doing it because I hope we can negotiate an end to this for the good of the country and because I have high regard for the president and for Bob Mueller.ā The president, naturally, is thrilled by the turn of events, which reunites him with this favorite cross-dressing enthusiast. āRudy is great,ā Trump said a statement issued by counsel Jay Sekulow. āHe has been my friend for a long time and wants to get this matter quickly resolved for the good of the country.ā
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Naturally, Andy Borowitz at The New Yorker couldnāt allow Rudyās resuscitation to go unnoticed:
WARNING: THIS IS āFAKE NEWSā BUT COMES WITH MY ABSOLUTE, UNCONDITIONAL, MONEY BACK GUARANTEE THAT IT CONTAINS MORE TRUTH THAN THE AVERAGE TRUMP TWEET OR SARAH HUCKABEE SANDERS NEWS BRIEFING, AND ALSO MORE FACTUAL ACCURACY THAN ANY REPORT PREPARED UNDER THE DIRECTION OF āAGENT DEVON!ā
SATIRE FROM THE BOROWITZ REPORT
TRUMP HIRES ONLY LAWYER IN U.S. WITH FEWER CLIENTS THAN MICHAEL COHEN
By Andy BorowitzApril 20, 2018
Photograph by Ralph Freso / Getty
WASHINGTON (The Borowitz Report)āThe White House announced on Thursday that Donald Trump had successfully secured the services of Rudolph Giuliani, after an exhaustive search for an attorney with fewer clients than Michael D. Cohen.
āPresident Trump had become concerned in recent days that Mr. Cohen might be too distracted to pay full attention to his case, what with him having two other clients and all,ā Sarah Huckabee Sanders, the White House press secretary, said. āSo the search was on for a lawyer with zero clients, and with the hiring of Mayor Giuliani, the President believes he has hit the jackpot.ā
Speaking to reporters, Giuliani agreed that, by virtue of having three fewer clients than Cohen, he was uniquely qualified to give Trump his full attention. āThere is absolutely no chance of my ever putting him on hold,ā Giuliani said.
While the former New York mayorās hiring got high marks from Trumpās inner circle, it drew a bitter reaction from Chris Christie, the former governor of New Jersey, who angrily pointed out that he had not been considered for the job despite having as few clients as Giuliani. āNot only do I have absolutely no clients, I have even less going on, career-wise, than Rudy Giuliani,ā Christie said. āOnce again, Iāve been screwed.ā
Mueller Says That Until Yesterday He Had Almost Forgotten to Investigate Giuliani
WASHINGTON (The Borowitz Report)āThe independent counsel, Robert Mueller, told reporters that, prior to news reports on Thursday, he had āalmost forgottenā to investigate the former New York mayor Rudolph Giuliani.
āLike most Americans, I had totally forgotten about Rudy Giulianiās existence,ā he said. āBut then when he popped up on the news I was, like, āHold onāshouldnāt we be investigating him?āĀ ā
Mueller was at a loss to explain why he had failed to investigate Giuliani earlier. āI have no idea how it could have slipped my mind,ā he said. āHis role in Trumpās campaign was as fishy as all get-out.ā
He said that other members of his team were āpoking funā at him for not deciding to investigate Giuliani before Thursday. āI mean, think about it: how do you do a criminal investigation of the Trump campaign and leave Rudy out of it?ā he said. āIāve got to say, Iām pretty darn embarrassed about the whole thing.ā
When asked for an estimate of when the Russia inquiry might wrap up, Mueller responded, āI honestly canāt say. I was hoping to bring it to a close in the next month or two, but now that weāre also investigating Rudy Giuliani, God only knows how long itāll take.ā
I’m betting that when the time comes that our poor nation finally is relieved of Gonzo’s “services” as AG, unlike the late Janet Reno he won’t be showing up for any live appearances on SNL. Perhaps, he’ll be out on bond awaiting trial. At least he’s smart enough to hire “Chuckie” Cooper as his mouthpiece rather than “The Fixer!”
Earlier this month, in the wake of revelations about his pricey travel habits and sweetheart deal on rent courtesy of a high-powered lobbyist, Scott Pruitt sat down with a series of reporters to clear the air and explain what was happening. The negative headlines and stories painting him as one of the most corrupt Cabinet members in the Trump administration were the result of one thing and one thing only, he said: a liberal plot against him. The real issue, Pruitt and his defenders insist, is not his preference for flying first class when coach would suffice, or the $50 a night he was shelling out for part of a D.C. townhouse in a neighborhood where the market rate was several multiples of that, but that the left simply doesnāt appreciate his hydrocarbon-happy dismantling of Barack Obamaāsregulatory regime. Which makes fresh accusations against Pruitt, by one of Donald Trumpās favorite staffers, somewhat awkward!
In a six-page letter addressed to Pruitt but circulated much more widely than his pair of very fancy desks, two senators and three House representatives detailed allegations that were brought to their attention this week by Kevin Chmielewski, who served as the presidentās body man during the campaignāTrump called him a āstarā and a āgemāābefore going on to work as the E.P.A.ās deputy chief of staff. (Chmielewski was placed on administrative leave without pay after objecting to Pruittās spending policies, which can be loosely summed up as: F–k you, I do what I want.) Among the most damning allegations:
Pruitt demanded the agency āenter into a $100,000 per month contract to rent a private jet, which would have cost more than the administratorās annual travel budget of approximately $450,000,ā a situation Chmielewski says he prevented from happening, probably to the detriment of his employment;
Pruitt made travel decisions based on his ādesire to visit particular cities or countries rather than official businessā and then told staff to āāfind me something to do [in those locations]ā to justify the use of taxpayer funds,ā which might explain his trip to Morocco to promote U.S. natural gas exports, despite the fact that said exports are not part of the E.P.A.ās mission to āprotect human health and the environmentā;
Pruitt booked his flights through Delta, despite the airline not being the federal governmentās contract carrier for the route, ābecause [he] want[ed] to accrue more frequent flier miles,ā just in case his private jet didnāt pan out;
Pruitt stayed in hotels that far exceeded the U.S. government per diem, sometimes by 300 percent. Exhibit A: when he traveled to Australia and Italy and refused to stay in hotels recommended by the U.S. Embassy, choosing fancier but less secure ones, which you think would concern someone who wanted a bullet-proof desk;
Pruitt blew through the $5,000 limit allowed by law to redecorate his office with items that included a $43,000 soundproof phone booth, art leased from the Smithsonian Institution, and a desk (one of two) that alone cost $2,075;
Pruitt insisted, as previously reported, on āthe use of lights and sirens to transport [him] more quickly through traffic to the airport, meetings, and social events on numerous occasionsā and required his drivers to āspeed through residential neighborhoods and red lights, far in excess of posted speed limits,ā because Scott Pruittās got places to be, people!
Pruitt insisted the E.P.A.ās director of scheduling āact as his personal real estate representative, spending weeks improperly using federal government resources and time to contact rental and sellerās agents, and touring numerous properties in which [he] might wish to resideā;
Pruitt gave two favored aides giant salaries after they were denied by the White House (which Pruitt claimed in recent interviews to not know anything about);
And that Pruitt did not even pay the $50 per night he owed lobbyist J. Steven Hart, who complained during a phone call Chmielewski heard on speakerphone that Pruitt āhad never paid any rent to himā and that Pruittās daughter āhad damaged his hardwood floors by repeatedly rolling her luggage across the unit when she was staying there.ā
According to the letter, Chmielewskiās employment with the E.P.A. ultimately ended thanks to his refusal to āretroactively approve [a favored stafferās] first-class return flight from Morocco.ā That Chmielewski, contends, caused Pruitt to remove him from his post. But naturally Pruitt did not do the dirty work himself, allegedly relying instead on the head of his security detail, Nino Perrotta, who Chmielewski says threatened him in such a way that he reported it to the local police, E.P.A. officials, and the White House Office of Presidential Personnel. (Speaking of Perrotta, i.e. the guy who deemed it too risky for Pruitt to sit in coach, we highly suggest checking out his self-published memoir, Dual Mission, which includes lines like, āI cannot tell how many women in those days held [my] gun during very passionate late-night moments. It was, in some ways, like a dangerous, forbidden sex toy to some, and I played right along. Although never loaded, I am certain to have broken a rule or two in terms of allowing unauthorized access to and use of a federal firearm.ā)
While the lawmakers concluded that the information left them ācertain that [Pruittās] leadership at E.P.A. has been fraught with numerous and repeated unethical and potentially illegal actions on a wide range of consequential matters,ā itās not clear that Trump will have him removed. On the one hand, the guy is on a roll when it comes to firing people. On the other, Pruitt has done such a stellar job dismantling Obamaās environmental legacy in his short time on the job, and good work is truly hard to find. While Trump has said nothing about the matter on social media, during a speech today ostensibly about tax reform, he told the crowd that that he plans to sign a āpresidential memorandum directing the E.P.A to cutā even more regulations on manufacturers.
For their part, Pruittās handlers appear to be on the offensive: just hours after the letter detailing the E.P.A. headās ethically challenged habits was released, word leaked that Chmielewski ānever filed required financial disclosure forms during his year in the Trump administration.ā That, combined with Pruittās stellar work turning the environment into an ashtray, should help him hang on little while longer.
On the other other hand . . .
Bloomberg reports that Andrew Wheeler, a former coal lobbyist, has been confirmed by the Senate to serve as the E.P.A.ās deputy administrator, which means he would lead the agency should Pruitt suddenly be told to clean out his desk. Many Democrats were opposed to the nomination, given Wheelerās push to roll back regulations while working on behalf of his clients, among them one of Americaās largest coal-mining companies. That may not be as impressive as Pruittās credentials for leading the agencyāsuing it 14 timesābut itās something.
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Go on over to Vanity Fair at the link to get the full “Levin Report.”
In an Administration loaded with ethically challenged individuals, starting with the “Big Boss,” Pruitt stands out. Nevertheless, because he is deconstructing the EPAĀ and dismantling critical environmental protections — “turning the environment into an ashtray” — Ā nobody in today’s GOP dares to agitate for his removal. Could you imagine how apoplectic the GOP would have been if Hillary Clinton or anyone else in the Obama Administration were fingered for doing this type of stuff?
Why did Paul Ryan choose not to run for re-election? What will be the consequences? Your guess is as good as mine ā literally. I can speculate based on what I read in the papers, but so can you.
On the other hand, I do have some insight into how Ryan ā who has always been an obvious con man, to anyone willing to see ā came to become speaker of the House. And thatās a story that reflects badly not just on Ryan himself, not just on his party, but also on self-proclaimed centrists and the news media, who boosted his career through their malfeasance. Furthermore, the forces that brought Ryan to a position of power are the same forces that have brought America to the edge of a constitutional crisis.
About Ryan: Incredibly, Iām seeing some news reports about his exit that portray him as a serious policy wonk and fiscal hawk who, sadly, found himself unable to fulfill his mission in the Trump era. Unbelievable.
Look, the single animating principle of everything Ryan did and proposed was to comfort the comfortable while afflicting the afflicted. Can anyone name a single instance in which his supposed concern about the deficit made him willing to impose any burden on the wealthy, in which his supposed compassion made him willing to improve the lives of the poor? Remember, he voted against the Simpson-Bowles debt commission proposal not because of its real flaws, but because it would raise taxes and fail to repeal Obamacare.
And his ādeficit reductionā proposals were always frauds. The revenue loss from tax cuts always exceeded any explicit spending cuts, so the pretense of fiscal responsibility came entirely from āmagic asterisksā: extra revenue from closing unspecified loopholes, reduced spending from cutting unspecified programs. I called him a flimflam man back in 2010, and nothing he has done since has called that judgment into question.
So how did such an obvious con artist get a reputation for seriousness and fiscal probity? Basically, he was the beneficiary of ideological affirmative action.
Even now, in this age of Trump, there are a substantial number of opinion leaders ā especially, but not only, in the news media ā whose careers, whose professional brands, rest on the notion that they stand above the political fray. For such people, asserting that both sides have a point, that there are serious, honest people on both left and right, practically defines their identity.
Yet the reality of 21st-century U.S. politics is one of asymmetric polarization in many dimensions. One of these dimensions is intellectual: While there are some serious, honest conservative thinkers, they have no influence on the modern Republican Party. Whatās a centrist to do?
The answer, all too often, has involved what we might call motivated gullibility. Centrists who couldnāt find real examples of serious, honest conservatives lavished praise on politicians who played that role on TV. Paul Ryan wasnāt actually very good at faking it; true fiscal experts ridiculed his āmystery meatā budgets. But never mind: The narrative required that the character Ryan played exist, so everyone pretended that he was the genuine article.
Which brings us to the role of the congressional G.O.P. and Ryan in particular in the Trump era.
Some commentators seem surprised at the way men who talked nonstop about fiscal probity under Barack Obama cheerfully supported tax cuts that will explode the deficit under Trump. They also seem shocked at the apparent indifference of Ryan and his colleagues to Trumpās corruption and contempt for the rule of law. What happened to their principles?
The answer, of course, is that the principles they claimed to have never had anything to do with their actual goals. In particular, Republicans havenāt abandoned their concerns about budget deficits, because they never cared about deficits; they only faked concern as an excuse to cut social programs.
And if you ask why Ryan never took a stand against Trumpian corruption, why he never showed any concern about Trumpās authoritarian tendencies, what ever made you think he would take such a stand? Again, if you look at Ryanās actions, not the character he played to gullible audiences, he has never shown himself willing to sacrifice anything he wants ā not one dime ā on behalf of his professed principles. Why on earth would you expect him to stick his neck out to defend the rule of law?
So now Ryan is leaving. Good riddance. But hold the celebrations: If he was no better than the rest of his party, he was also no worse. Itās possible that his successor as speaker will show more backbone than he has ā but only if that successor is, well, a Democrat.
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Yup. I’ve said before that Paul Ryan is a 24 carat fraud. He delivered on totally unnecessary tax cuts for the Koch Brothers and other “fat cats” that hurt the rest of America and that will cost us well into the future. He failed on Dreamer relief which should and could have been a “no brainer.” That tells you all you really need to know about this disingenuous creep!
Immigration judges are the trial-level judges who make the life-changing decisions of whether or not non-citizens are allowed to remain in the United States. They are facing a virtual mountain of cases: almost 700,000 for about 335 judges in the United States. The work is hard. The law is complicated. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. Because these are considered civil cases, people are not provided attorneys and must pay for one, find a volunteer, or represent themselves.
In a move that the Department of Justice claims is intended to reduce this crushing backlog, the DOJ is moving forward with a plan to require judges to meet production quotas and case completion deadlines to be rated as satisfactory in order to keep their jobs. This misguided approach will have the opposite effect.
One cannot measure due process by numbers. The primary job of an immigration judge is to decide each case on its own merits in a fair and impartial way. That is the essence of due process and the oath of office we take. Time metrics simply have no place in that equation. Quality measurements are reasonable, and immigration judge performance should be evaluated, but by judicial standards, which are transparent to the public and expressly prohibit quantitative measures of performance. The imposition of quotas and deadlines forces a judge to choose between providing due process and pushing cases to closure without considering all the necessary evidence.
If quotas and deadlines are applied, judicial time and energy will be diverted to documenting our performance, rather than deciding cases. We become bean-counting employees instead of fair and impartial judges. Our job security will be based on whether or not we meet these unrealistic quotas and our decisions will be subjected to suspicion as to whether any actions we take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. Under judicial canons of ethics, no judge should hear a case in which he or she has a financial interest. By tying the very livelihood of a judge to how quickly a case is pushed through the system, you have violated the fundamental rule of ensuring an impartial decision maker is presiding over the case.
These measures will undermine the publicās faith in the fairness of our courts, leading to a huge increase in legal challenges that will flood the federal courts. Instead of helping, these doubts will create crippling delays in our already overburdened courts. If history has taught us any lessons, it is that similar attempts to streamline have ultimately resulted in an increase in the backlog of cases.
The unacceptable backlogs at our courts are due to decades of inadequate funding for the courts and politically motivated interference with docket management. The shifting political priorities of various administrations have turned our courts into dog and pony shows for each administration, focusing the courtās scant resources on the cases ādu jour,āāe.g., children or recent border crossersāinstead of cases that were ripe for adjudication.
The solution to the delays that plague our courts is not to scapegoat judges. The solution is two-part: more resources and structural reform. We need even more judges and staff than Congress has provided. Additionally, the immigration courts must be taken out of the Department of Justice, as the mission of an independent and neutral court is incompatible with the role of a law enforcement agency. This latest, misguided decision to impose quotas and performance metrics makes that conclusion clear and highlights the urgent need for structural reform. The measure of a good judge is his or her fairness, not the number of cases he or she can do in a day.
Dana Leigh Marks is president emeritus of the National Association of Immigration Judges and has been a full-time immigration judge in San Francisco since 1987. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the authorās personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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For those of you who don’t know her, my friend and colleague Dana is not just “any” U.S. Immigration Judge. In addition to her outstanding service as a Immigration Judge and as the President of the NAIJ, as a young attorney, then known as Dana Marks Keener, she successfully argued for the respondent in the landmark Supreme Court case INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
That case for the first time established the generous “well-founded fear” standard for asylum seekers over the objections of the U.S. Government which had argued for a higher “more likely than not” standard. Ironically, it is exactly that generous treatment for asylum seekers mandated by the Supreme Court, which has taken more than four decades to come anywhere close to fruition, that Sessions is aiming to unravel with his mean-spirited White Nationalist inspired restrictionist agenda at the DOJ.
Interestingly, I was in Court listening to the oral argument in Cardoza because as the then Acting General Counsel of the “Legacy INS” I had assisted the Solicitor General’s Office in formulating the “losing” arguments in favor of the INS position that day.
Due Process Forever! Jeff Sessions Never! Join the New Due Process Army and stand up against the White Nationalist restrictionist attack on America and our Constitution!
The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the programās cost-effectiveness, a federal official said Tuesday.
Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofitās Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.
The federal government will also evaluate Veraās āhelp desk,ā which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.
The Executive Office for Immigration Review, which runs the Justice Departmentās immigration courts, said the government wants to āconduct efficiency reviews which have not taken place in six years.ā An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.
But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.
āThis is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,ā said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.
In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was āa cost-effective and efficient way to promote due processā that saved the government nearly $18 million over one year.
The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.
Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.
The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.
The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court Āproceedings would move more quickly.
In Veraās Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.
āExperience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,ā the agencyās website says.
The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.
Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.
The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. Ā The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. Ā My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.
In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.
In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.
Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.
Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!
President Trump issued a memorandum on Friday directing his administration to move quickly to bring an end to ācatch and release,ā the practice by which immigrants presenting themselves at the border without authorization are released from detention while waiting for their cases to be processed.
The directive does not, on its own, toughen immigration policy or take concrete steps to do so; it merely directs officials to report to the president about steps they are taking to āexpeditiously end ācatch and releaseā practices.ā But it is a symbolic move by Mr. Trump to use his executive action to solve a problem that he has bitterly complained Congress will not.
It also caps a week that began with the president offering tough talk on immigration and ended with his ordering the National Guard to patrol the southwestern border, a move formalized on Friday night when Defense Secretary Jim Mattis signed orders to deploy up to 4,000 troops.
āThe safety and security of the American people is the presidentās highest priority, and he will keep his promise to protect our country and to ensure that our laws are respected,ā Sarah Huckabee Sanders, the White House press secretary, said in a statement announcing the memorandum.
āAt the same time, the president continues to call on congressional Democrats to cease their staunch opposition to border security and to stop blocking measures that are vital to the safety and security of the United States,ā she added.
The memo appears intended to prod the administration to move more rapidly in cracking down on unauthorized immigrants at the border, a goal laid out in an executive order Mr. Trump issued last year during his first week in office.
The latest directive instructs the Departments of Homeland Security, Defense, Justice and Health and Human Services to report to the president within 45 days on their efforts to ensure that those immigrants are detained, including steps taken to allocate money to build detention facilities near the borders. The agencies must also detail efforts to ensure unauthorized entrants do not āexploitā parole and asylum laws to stay in the United States, including evaluating how they determine whether migrants have ācredible fearā of returning to their country of origin ā the legal bar that people claiming asylum must meet to avoid prompt removal.
The memo also orders a list of existing facilities, including military sites, that could be used to detain those violating immigration law, and detailed statistics on credible claims of fear and how they have been processed since 2009.
The directive gives officials 75 days to report to Mr. Trump on additional resources or authorities they need to end catch-and-release practices. And within 60 days, it asks the secretaries of state and homeland security to submit a report on actions they are taking against countries that ārefuse to expeditiously accept the repatriation of their nationals,ā including whether the United States has punished them by refusing to grant visas to their citizens ā and if not, why not.
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The Trump Administration already stands credibly accused in at least one pending court case of violating its legal duty to consider asylum claims by individuals who apply at ports of entry on the Southern Border. Obviously, such legal violations by our Government promote illegal entry as the only way to vindicate statutory rights. Trump’s outrageous creation of a “false crisis” at the Southern Border should prompt the Article III Federal Courts to enjoin the Administration to comply with the asylum law.
Moreover, further attempts to manipulate the “credible fear” criteria against asylum seekers should also lead to Federal Court review and action against the Administration if, as appears likely, it uses biased criteria to deny the legal right Ā of individuals in the U.S. or at the border to apply for asylum.
Moreover, asylum applicants who are “in the United States” whether legally or illegally and are in Removal Proceedings are entitled to an individualized bond consideration (unless they are serious criminals or security risks — the overwhelming number of asylum applicants are neither). Attempts to manipulate bond criteria (which have been undertaken to some extent by the last three Administrations) have almost uniformly been rejected by the Article III Federal Courts.
Therefore, the Administration’s legal options might be limited. However, the Administration arguably might have authority under current law to detain asylum applicants who arrive at ports of entry without providing any rational reasons for doing so. That’s likely to be a hotly contested issue in litigation.
Meanwhile, it’s critically important for those of us who support American values and see through the charade being put on by the Trump Administration to elect only U.S. Senators and Representatives who will “Just Say No” to the Administration’s bogus requests for: 1) more unneeded DHS enforcement personnel; and 2) more unneeded detention space in the “New American Gulag” being created by Trump and his WhiteĀ NationalistĀ reactionaries.
Harm to the most vulnerable is harm to all of us! Join the New Due Process Army and resist the Trump Administration’s contrived assault on America! Due Process Forever! Trump & Sessions Never!
The nationās 58 immigration courts long have been the ragged stepchild of the judicial system ā understaffed, technologically backward and clogged with an ever-growing backlog of cases, more than 680,000 at last count.
But a plan by Atty. Gen. Jeff Sessions, a longtime immigration hawk, aimed at breaking the logjam and increasing deportations of immigrants in the country illegally has drawn surprising resistance from immigration judges across the country.
Many say Sessionsā attempts to limit the discretion of the nationās 334 immigration judges, and set annual case quotas to speed up their rulings, will backfire and made delays even worse ā as happened when previous administrations tried to reform the system.
āItās going to be a disaster and itās going to slow down the adjudications,ā warned Lawrence O. Burman, secretary of the National Assn. of Immigration Judges, a voluntary group that represents judges in collective bargaining.
Cases already move at a glacial pace. Nationwide, the average wait for a hearing date in immigration court is about two years, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization at Syracuse University.
But some jurisdictions are much slower. The immigration court in Arlington, Va., where Burman is a judge, has a four-year backlog, meaning hearings for new cases are being scheduled in 2022. Burman says the reality is far worse ā the docket says he has 1,000 cases scheduled to begin on the same day in 2020.
. . . .
Another problem: Poorly funded immigration courts still use paper files, slowing access to information, while other federal courts use digital filing systems.
The Executive Office of Immigration Review, the Justice Department office that oversees the courts, started studying the problem in 2001. It has issued numerous reports and studies over the last 17 years, but accomplished little in the way of computerized record keeping.
. . . .
The judges don’t see it that way. Burman and other leaders of the immigration judges’ association, in an unusual public protest, say Sessions’ plan will force judges to rush cases and further compromise the courts’ already battered reputation for fairness.
“Clearly this is not justice,” said the association president, Judge A. Ashley Tabaddor, who sits in Los Angeles, the nation’s busiest immigration court. The plan will “undermine the very integrity of the court.”
Sessions is not the first U.S. attorney general to try to push deportation cases through the system faster.
John Ashcroft, who served under President George W. Bush, unveiled a streamlined approach in 2002, firing what he called softhearted judges from the 21-member Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws.
The result was an increase of cases sent back by federal courts, which reviewed the decisions ā and more delays.
Under the Obama administration, immigration judges were ordered to prioritize old cases to try to clear the backlog. But after thousands of unaccompanied minors from Central America surged to the southwest border in 2014, they were told to focus on those cases instead. As the dockets were reshuffled, the backlog kept growing.
Last fall, Sessions ordered 100 immigration judges from around the country to travel to courts on the border to move cases quickly. The Justice Department pronounced it a success, saying they finished 2,700 cases.
Some of the judges were less enthusiastic.
“We had nothing to do half the time,” said Burman, who spent eight weeks in border courts. “I’m not saying it’s a bad idea, but they sent more people than they needed to” while his caseload in Virginia languished for those two months.
Immigration advocates say the answer is more resources: more judges, more clerks, and legal representation for immigrants. They also say the courts should be independent, not under the Justice Department.
“Everybody wants to hear there’s some magical solution to make all this fine. It’s not going to happen,” said Paul Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals.
“If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars,’ he said.
Staff writer Brian Bennett contributed to this report.
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Go on over to the LA Times at the above link for Joseph’s complete article.
Those of us in the Immigration Courts at the time of the “Ashcroft debacle” know what a complete disaster it was from a due process, fairness, and efficiency standpoint. Far too many of the cases were returned by the Article III Courts for “redos” because Immigration Judges and BIA Members were encouraged to “cut corners” as long as the result was an order of removal.
Some judges resisted, but many “went along to get along.” Some of the botched cases probably still are pending. Worse, some of the botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases up to the Courts of Appeals. And, the Courts of Appeals by no means caught all of the many mistakes that were made during that period. Haste makes waste. Ā I analogized it to being an actor in a repertory theater company playing the “Theater of the Absurd.” Now, Sessions is promoting a rerun of another variation on that failed theme.
Somebody needs to fix this incredibly dysfunctional system before shifting it into “high gear.” And, it clearly won’t be Jeff Sessions.
MADISON (The Borowitz Report)āScott Walker, the governor of Wisconsin, said on Wednesday that he was ādismayed and alarmedā that people in his state had somehow become smarter despite substantial cuts in education.
āEver since I took office, I have slashed education with the goal of making the voters of this state markedly dumber and incapable of critical thinking,ā he told reporters. āInstead, what I am looking at is a doomsday scenario.ā
Walker said that his cuts were based on a theory known as ātrickle-up stupidity,ā in which students in Wisconsinās schools would become less informed and their ignorance would eventually infect their voting-age parents.
āClearly, what looked like a canāt-miss plan on paper has not panned out,ā he said.
Although Walker said that āitās not time yet to press the panic button,ā he warned that a so-called Smart Wave could be coming in his state.
āIf Wisconsin voters continue to get smarter, that will be the end of me,ā he said.
My former colleague Judge Bruce J. Einhorn writes in the Washington Post:
Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.
Itās a principle that has been a hallmark of our legal culture: The president shouldnāt be able to tell judges what to do.
No longer. The Trump administration is intent onĀ imposing a quota systemĀ on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.
I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICEās claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.
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As a judge, I swore to follow theĀ Fifth AmendmentĀ of the U.S. Constitution, which guarantees that āno personā (not āno citizenā) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.
My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.
Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a āsatisfactoryā performance rating. It follows that only judges who complete more, perhaps many more, than 700Ā cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.
Essentially, the administrationās plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.
This is a genuine threat to the independence of the immigration bench. WhileĀ Article IIIĀ of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under theĀ U.S. Administrative Procedure Actor any regulations.
Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it,Ā and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.
Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.
The Trump administrationās intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness ā as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.
In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.
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Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!
Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!
Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now!Ā The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!
How Trump’s policies could worsen the migration issue he says he wants to solve
By Tal Kopan, CNN
President Donald Trump in recent days has decried “weak” US border laws that he says leave the US vulnerable to unfettered immigration — but some of his policies could have the effect of worsening a Central American migrant crisis.
Even as the Department of Homeland Security says the southern border “is more difficult to illegally cross today than ever before,” Trump has stepped up his hardline immigration rhetoric, calling on the US military to guard the US-Mexico border until his long-promised wall is complete. He’s hammered Mexico and other countries for policies that he says are disadvantageous to the US and that send unsavory individuals into the country.
But experts say the President has been pursuing other policies that could substantially harm Central America — and in doing so, he risks creating conditions that generate the exact kind of mass exodus north that he talks about wanting to solve.
Immigration is driven by what are called push and pull factors. The US has been seeking aggressive immigration powers to cut down on what they say are pull factors — the perception that immigrants can live illegally with impunity in the US. But those very policies could affect push factors — the conditions of poverty and violence that drive immigrants elsewhere out of desperation.
“The US sort of talks out of both sides of its mouth,” said Eric Olson, a Latin America expert at the nonpartisan Wilson Center.
“If you’re investing in the region to address the drivers of migration and at the same time pursuing a policy of large-scale deportation, or at least potentially large-scale deportation, and you’re creating more obstacles for people leaving the region for reasons like violence and so on, you’re really creating more instability, not less instability.”
As Tal says, there’s much, much more to her report on the total stupidity and counter-productivity (not to mention inhumanity) of the Trump Administration’s “Gonzo” enforcement policy. Ā Go on over to CNN at the link to get the full picture.
I’ve been saying for some time now that Trump is pursuing facially “hard-line” policies that are proven failures.Ā Indeed, that forced migration from Central America is a phenomenon that spans four decades and six different Administrations with varying degrees of Ā “same old, same old” would suggest to rational leadership that a different approach is required.
Contrary to Trump’s oft-made bogus claim, his is not the first Administration to try a “close the border, detain and deter” policy. Ā Beginning with Reagan, every Administration has tried largely the same thing (although perhaps without some of the inflammatory and outright racist rhetoric favored by the Trumpsters) and all have failed. I know because I’ve been involved in some aspect of trying to implement those failed policies in at least four of those Administrations, two GOP and two Democrat.
That’s why the trend of migration from the Northern Triangle continues and will continue and fester until we get some enlightened leadership that 1) correctly applies our refugee and protection laws in the generous humanitarian spirit they were intended; and 2) recognizes and starts to deal effectively with the “push” issues in the sending countries.
Contrary to the false narrative spread by current Administration, most Central American refugees that I encountered personally during my career would have preferred to remain in their home countries, if political and country conditions had permitted it. Indeed, many were forced by targeted violence to give up promising careers, studies, or businesses to flee for their lives to the U.S. Here, they often had to perform “entry-level” work to support themselves unless and until they achieved some type of legal status (often TPS , asylum, withholding of removal, CAT relief, Special Immigrant Juvenile (“SIJ”) status, or a green card under NACARA).
Of course, many were denied protection despite having very credible, well-documented fears of harm because they didn’t fit the intentionally restrictive asylum criteria engineered by the BIA over several Administrations largely as a result of political pressure on the system to be “unwelcoming” to Central American migrants. Ā Some of those who returned were killed or disappeared; Ā others were tortured or attacked again and forced to flee second or third times, now bearing the scars or injuries to prove their cases — only as “prior deportees” they were no longer eligible for asylum but had to accept withholding of removal or CAT deferral.
Nobody in this Administration, and sadly relatively few in Congress and among the public, are willing to deal honestly with the phenomenon of Central American migration and the “push factors” that will never, ever be controlled by more restrictive laws, more violations of statutory, Constitutional, and international rights, inhumane and life-threatening detention , and racist rhetoric. Nor will it be stopped by any bogus “Wall.”
As I’ve said before, “We can diminish ourselves as a nation, but that won’t stop human migration!” If only someone would listen!
The news was not welcomed by the National Association of Immigration Judges. Judge A. Ashley Tabaddor, the current president of the union, says the quotas are āan egregious example of the conflict of interests of having the immigration court in a law enforcement agency.ā A quota system invites the possibility that judges will make decisions out of concern about keeping their jobs, she says, rather than making what they think is the legally correct decision. And even if they donāt, she points out, respondents in immigration court may argue that they do.
āTo us, it means you have compromised the integrity of the court,ā says Tabaddor, who is a sitting immigration judge in Los Angeles but speaking in her capacity as NAIJās president. āYou have created a built-in appeal with every case. You are going to now make the backlog even more. Youāre going to increase the litigation, and you are introducing an external factor into what is supposed to be a sacred place.ā
Retired immigration judge Paul Wickham Schmidt adds that the new metrics are unworkable. Reversal on appeal is influenced by factors beyond the judgeās control, he says, including appeals that DHS attorneys file on behalf of the government and shifting precedents in higher courts.
McHenryās email said that āusing metrics to evaluate performance is neither novel nor unique to EOIR.ā Tabaddor disagrees. Federal administrative law court systems may have goals to aspire to, she says, but those judges are, by law, exempt from performance evaluations. Nor have the immigration judges themselves been subject to numeric quotas in the past.
āNo other administration before this has ever tried to impose a performance measure that [had] this type of metrics, because they recognized that immediately, you are encroaching on judicial independence,ā she says.
Schmidt agrees. āNo real judge operates under these kinds of constraints and directives, so itās totally inappropriate,ā says Schmidt, who has also served on the Board of Immigration Appeals. āAnd itās part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.ā
Tabaddor adds that the Justice Department forced the union last year to drop a provision forbidding numbers-based performance evaluations from its contract negotiations. This was not a sign that NAIJ agrees with the quotas, she says, but rather that the unionās hands are tied under laws that apply to federal employees.
The memo continues a trend of Justice Department pressure on immigration judges to resolve cases. Attorney General Jeff Sessions, who has the power to refer immigration law cases to himself, is currently taking comment on whether judges should have the power to end cases without a decision. (The ABA has said they should.)
Last summer, the chief immigration judge discouraged judges from granting postponements. Sessions did the same in a December memo that referenced the backlog as a reason to discourage āunwarranted delays and delayed decision making.ā
Sessions has power over the immigration courts because they are a branch of the DOJ, not an independent court system like Article III courts. Independence has long been on the judgesā unionās wish list, and it was one topic when HBOās Last Week Tonight with John Oliverexplored some problems with immigration courts on Sunday.
As the ABA Journal reported in 2017, the immigration courts have had a backlog of cases for most of the past decade, fueled by more investment in enforcement than in adjudication. Schmidt claims that unrealistic laws and politically motivated meddling in dockets also contribute to the backlog. As of the end of February, 684,583 cases were pending, according to Syracuse Universityās Transactional Records Access Clearinghouse, which gets its data from Freedom of Information Act requests.
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Read Lorelei’s full article at the link.
Clearly:
Today’s Immigration Courts are not “real” courts in the sense that they are neither independent nor capable of truly unbiased decision-making given the clear bias against immigrants of all types expressed by Sessions and other officials of the Trump administration who ultimately control all Immigration Court decisions.Ā
The Immigration Courts have become a mere “facade of Due Process and fairness.” Consequently, Federal Courts should stop giving so-called “Chevron deference” to Immigration Court decisions.
The DOJ falsely claimed that the NAIJ “agreed” to these “performance metrics” (although as noted by Judge Tabaddor, the NAIJ might have lacked a legal basis to oppose them).
The current Immigration Court system is every bit as bad as John Oliver’s TV parody, if not actually worse.
America needs an independent Article I Immigration Court. If Congress will not do its duty to create one, it will be up to the Federal Courts to step in and put an end to this travesty of justice by requiring true Due Process and unbiased decision-making be provided to those whose very lives depend on fairness fromĀ the Immigration Courts.
The tragedy is that bad as this sounds, the reality of what’s going on every day in this broken, failed, and disingenuous system is probably much worse than what’s portrayed here.
Yup, we can all chuckle at others’ misfortune. But, if Trump, Sessions, and the White Nationalist restrictionist crowd aren’t removed from office, this will be how all of our rights are treated.Ā Someday, all of us are going to need to rely on our Constitutional rights. And, if Trump & Sessions have their way, you’ll be longing for the “Kiddie Court” rather than the travesty that’s being called “Due Process” in our Immigration Courts.
Harm to the most vulnerable among us is harm to all. Join the New Due Process Army and fight for the real America! Due Process Forever! Trump & Sessions Never!
In a three-tweet salvo Sunday morning, Trump decried recent struggles with congressional Democrats to reach a deal that would legalize the status of millions of ādreamersā ā undocumented immigrants who were brought to this country as children.
āBorder Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release,ā Trump said in his first tweet. āGetting more dangerous. āCaravansā coming. Republicans must go to Nuclear Option to pass tough laws NOW. NO MORE DACA DEAL!ā
DACAĀ refers to the Obama-era Deferred Action for Childhood Arrivals program, which Trump ended in the fall. The program had allowed dreamers to live in the country without fear of deportation.
Trump, a self-proclaimed āFox & Friendsā fan, appears to have fired off the tweets in response to a segmentĀ on the program in the morning (at least the National Border Patrol Council sees a connection, it claimed in a post afterward).
Why are they moving in a caravan?
The Fox News opinion segment was in response to a BuzzFeedĀ reportĀ onĀ FridayĀ that more than a thousand Central Americans, primarily from Honduras, were winding their way up through Mexico to the U.S. border on a nearly month-long tripĀ that began March 25. These migrants are looking to seek asylum from criminal elements back home orĀ slip into the United States undetected.
Moving in a large group is expected to blunt the efforts of criminal gangs and cartels known to isolate and later rob immigrants, many of whom bring large sums of money to make the long journey north through Mexico. The caravan organizers, Pueblos Sin Fronteras, or People Without Borders, appeared to have concluded that it is safer for these people to travel together.
That trip can be deadly as people find their way along various routes that go directly north to Texas, northwestĀ to Arizona or along the coast to California.
Just about every route is more than a thousand miles long and is canvassed by robbers and corrupt policeĀ who shakeĀ downĀ the immigrants, who haveĀ little access to legal recourse. A network of commercial locomotives is veined throughout Mexico in a 1,450-mile cannonball run. Migrants ride on top of the trains, occasionally falling off and breaking bones or suffering severe dehydration.
Central American immigrants get on the āLa Bestiaā cargo train in Arriaga, Mexico, on July 16, 2014, in an attempt to reach the Mexico-U.S. border. (Elizabeth Ruiz/AFP/Getty Images)
Members of the caravan said they would attempt to ride the trains, but in 2014, more guards and trains moving faster through stations made it more difficult for migrants to catch rides.
Migrants have many names for the trains, such as āElĀ tren de los desconocidosā (the train of the unknowns)Ā and āEl tren de la muerteā (the train of death).
But its most common name is āLa Bestiaā: the Beast.
What is Mexico doing about the flow of migrants?
āMexico is doing very little, if not NOTHING, at stopping people from flowing into Mexico through their Southern Border, and then into the U.S. They laugh at our dumb immigration laws. They must stop the big drug and people flows, or I will stop their cash cow, NAFTA. NEED WALL!ā Trump saidĀ in his second tweet.
Mexico is doing something ā with the help of the United States. Hundreds of millions of dollars in aidĀ flow to Mexico every year, including funds for strengthening its border with Guatemala, where migrants generally cross.
BillionsĀ in additional spending authorized by President Barack Obama in 2014 was prompted by thousands of unaccompanied minors arriving on the U.S.-Mexico border, mostly Central Americans fleeing horrific crime waves and economic crises in Honduras, El Salvador and Guatemala. About 300,000 migrantsĀ were detained by Mexican authorities in the next two years.
The caravan began in Tapachula, BuzzFeed reported, nestled just on the other side of the border, and no authorities in Mexico appear to have stoppedĀ it as of Friday.
What is Trump doing about it?
Trumpās proposals to reduce aid to Mexico would raise the possibility that the country would be less able to stem flows of migrants and drugs coming across its border.
The president has been caught in a contradiction of policy on the border before.
The budget for the U.S. Coast Guard stayed flat in 2018 despite spending increases across the Pentagon (the Coast Guard falls under the Department of Homeland Security). But the service seizes three times as much cocaineĀ moving by sea as whatĀ U.S. agenciesĀ intercept at border checkpoints, putting a dent into Trumpās argument that a border wall would dry up the supply of hard drugs in the United States.
Trump has been more focused on DACA and the border wall lately. He has suggested that the program may be the reason the caravan has massed.
āThese big flows of people are all trying to take advantage of DACA. They want in on the act!ā Trump said in a tweet.
He later said outside a church before Easter services Sunday:Ā āA lot of people are coming in because they want to take advantage of DACA. They had a great chance. The Democrats blew it.ā
But that description of DACA appears to misrepresent the programās intent, which was to provide protection for immigrants who were brought to the United States illegally as children. The adults in the caravan wouldnāt qualify for DACA. White House press secretary Sarah Huckabee Sanders did not respond to a request for comment on the matter.
āI asked some of the migrants on the caravan what they thought about Trump saying they were going to the US for DACA,ā BuzzFeed reporter Adolfo Flores tweeted Sunday. āSome laughed and others said they thought (correctly) they wouldnāt qualify.ā
Flores reportedĀ Friday afternoon that the caravan hadĀ gone more than 200 miles northwest in less than a week, crossing into the Mexican state of Oaxaca.
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Trump, Sessions, Miller, Homan, Nielsen and the rest of the White Nationalist cabal live in their own parallel universe where bias, hate, racism, xenophobia, lies, fears, cowardice, and political manipulation block out any rays of truth or reason. Ā It’s certainly bad for our country to have such distorted, divisive, dishonest, and incompetent leadership. But, it’s a fact of life that the rest of us just have to deal with if we want to live in the present moment and try to prevent future disasters.
Undoubtedly, the Trump Administration’s inhumane and short-sighted policies will inflict some unnecessary pain and hardship on individuals who otherwise would be our friends and become loyal and productive members of our society. But, it’s unlikely that any of Trump’s blustering or the Administration’s “Gonzo” immigration enforcement policies and “Alice in Wonderland” pronouncements will have much lasting effect on migration patterns except, perhaps, to increase the number of people living in the United States without documents by artificially shutting down some of the existing paths that encourage individuals to come forward and obtain documentation or to enter the U.S. through the legal system in the first place. As with so much that this Administration is doing, it will be left for future generations to clean up the mess.
Wow, if these pathetic Dudes who supposedly govern us are this afraid of a few ragtag scared refugees moving north, what would they do in the face of a real army, a real invasion, and a real danger to our country? There wouldn’t be enough desks in Washington for them all to hide under!