"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?
U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.
The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.
The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.
Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a seriesofpolicies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.
The Department of Justice did not respond to a request for comment.
Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.
“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”
Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.
Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”
And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”
“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.
Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.
Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.
In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.
Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.
Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.
What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.
NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.
“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”
EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”
Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”
Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.
Blaine Bookey, Co-Director, Center for Gender & Refugee Studies, Hastings Law
“Eric the Cameraman”
NEW YORK, NY, Friday, March 8, 2019. The “CBS Team,”* Jeffrey S. Chase, Blaine Bookey, and Paul Wickham Schmidt wowed the sellout crowd at the FBA Asylum Conference at NY Law School Friday. Speaking in the coveted “final slot” of the afternoon, the “CBS Gang” gave an enthusiastic audience lots of reasons and ways to go out and oppose former Attorney General Sessions’s perversion of American asylum law in Matter of A-B-.
In that case, Sessions reversed nearly two decades of progress and consensus in asylum law to “stick it” to Ms. A-B-, a survivor of extreme domestic violence persecution in El Salvador who fled to the U.S., escaping torture and death threats.
Schmidt, a former Immigration Judge in Arlington, Virginia and past Chairman of the Board of Immigration Appeals, led off with a rousing speech blasting Sessions for bias, intellectual dishonesty, and bad lawyering. He agreed with U.S. District Judge Emmet G. Sullivan in the recent case Grace v. Whitaker that much of what Sessions said was non-binding dicta.
Schmidt also formulated seven ways for advocates to challenge the decision. He brought the crowd to its feet with his closing exhortation to what he called the New Due Process Army: “Due Process forever, xenophobia never!”
Bookey, Co-Director of the Center for Gender and Refugee Studies at Hastings Law and a long time refugee advocate, appeared “larger than life” from California through the “miracle of televideo.” She showed a moving video of Ms. A-B- relating the horrible rape, beatings, death threats and abandonment by her government that forced her to leave El Salvador and her fear that she would be killed upon return.
Bookey also pointed out that this isn’t a mere “difference of opinion” among lawyers. Rather, Matter of A-B- is a concerted and evil attempt to undo an existing national and international legal consensus that women facing domestic violence can and must be protected under refugee law. The reversion sought by Sessions and his restrictionist supporters would basically return women to the “dark ages” and result in torture, death, maiming and rape of countless females by persecutors throughout the world. Bookey also offered the Center for Refugee and Gender Studies at Hastings as a “clearinghouse” for litigation and litigation strategies attacking A-B-.
Batting “clean up,” retired Immigration Judge and noted asylum historian Chase led the audience in a tribute for Bookey’s “in the trenches” heroism in staunchly defending the rights of refugee women throughout our nation and the world. He then proceeded to eviscerate Sessions’s decision by going through Ms. A-B-‘s actual evidence in detail.
He pointed out how Sessions ignored facts of record supporting a grant of asylum to Ms. A-B- on the merits regardless of the favorable BIA precedent that Sessions went to great lengths to overrule. He also mentioned the ongoing efforts of “Our Gang” of retired U.S. Immigration Judges, assisted pro bono by some of America’s best lawyers, to educate the Article III Courts as to the realities of asylum adjudication and the systemic destruction wrought by Sessions’s unprovoked attack on women’s asylum rights.
The Conference concluded with a request by FBA immigration Section Chair Elizabeth “Betty” Stevens for everyone to contract their Senators and Representatives about the need for an independent Article I U.S. Immigration Court as proposed by the FBA, ABA, National Association of Immigration Judges, AILA, and others.
Netflix filmed the proceedings for a future documentary about American immigration. Additionally, star immigration reporter Nicole Neara of Law 360 was in the audience. Immediately following the closing, Conference organizer and NY Law School Professor Claire “Human Dynamo” Thomas left for the Southern Border with a group of students committed to putting into effect what they had learned about strategies for ensuring due process and re-establishing justice in the U.S. asylum system.
*The “CBS Hour,” “CBS Team,” and “CBS Gang” have no relationship to the CBS Network, CBS Broadcasting, CBS Sports, CBS News, or any other legitimate organization.
Good afternoon, and thanks so much for inviting me. In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the FBA, New York Law School, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks today. They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”
“Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,”
Those, my friends, are obviously not my words. Whose words are they? They are the words of former Attorney General Jeff Sessions who ran the U.S. Immigration Courts for nearly two years.
Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual, who had actually been rejected for a Federal Judgeship by his own party because of alleged racial bias, was in charge of our U.S. Immigration Court system. That helps explains why it is such a total disgraceful mess today from both a Due Process and administrative standpoint.
The Immigration Courts have a “known backlog” of over 1.1 million cases, with tens, perhaps hundreds, of thousands of additional cases likely squirreled away and still unaccounted for following the unnecessary “shutdown,” no signs of abating, and absolutely no, I repeat no, credible planfor reducing or controlling the backlog consistent with Due Process and our asylum laws. The DOJ’s process for increasing the backlog, known as “Aimless Docket Reshuffling” – and their outrageous attempts to “shift the blame” to respondents and their attorneys – are, as my esteemed former colleague retired Judge M. Christopher Grant used to say, “on steroids.” And, as my friend and fellow panelist, Judge Jeffrey Chase pointed out this week to BuzzFeed News, the current “strategy shift” to slowing down judicial and court staff hiring and abandoning once again the “e-filing program” that EOIR has failed to roll out after two decades of failed efforts is a guarantee that: “More people will wait longer!”
Acting Attorney General Whitaker’s questionable certification of two important cases during his brief tenure promises a continuation of political interference with the Immigration Courts in derogation of Due Process.
Don’t expect any improvement under current Attorney General Bill Barr. He’s known as an “enforcement solves all problems” immigration hard liner who co-authored an article praising Sessions for his attacks on Civil Rights, immigrants, and other vulnerable communities.
One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence.
Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually workedand provided a way of moving cases efficiently through the court system in accordance with Due Process while consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world!
Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”
The only real,Article IIIFederal Judge who has ruled on Matter of A-B-to date largely supports my criticisms of Sessions’s effort to distort asylum law against refugee women. It’s a decision written by U.S. District Judge Emmet G. Sullivan in Washington, D.C. called Grace v. Whitaker. You will want to read that decision. There is also an outstanding analysis by my fellow panelist Judge Jeffrey S. Chase on his blog.
Unfortunately, but not unexpectedly, EOIR has purported to limit Grace’s rejection of Matter of A-B-to so called “Credible Fear Reviews.” In other words, they have improperly, and perhaps unethically, instructed Immigration Judges and the BIA not to apply Gracein individual asylum hearings.
But, that shouldn’t stop you from shoving Grace back down their throats! There is an outstandingonline practice advisory on how to argue Gracein Immigration Court by my fellow panelist Blaine’s amazing colleague, my good friend Professor Karen Musalo. I also reposted it in my blog, immigratoncourtside.com.
I’m going to give you sevenvery basic tips for overcoming Matter of A-B-. I’m sure that Blaine and her colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.
First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta.
On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”
Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.
Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.
Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG. It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.
And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.
As Judge Chase and I recently reported on our respective blogs, a number of these “women as a PSG” cases have succeeded in the “Post-A-B-Era.” The detailed unpublished analyses by Immigration Judges are available online and, although of course not precedents, should give you helpful ideas on how to construct arguments and rebut ICE attempts to invoke A-B- to bar meritorious asylum claims by abused women.
Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. Indeed, a very recent front-page article in the Washington Postpointed out that gangs are so completely in charge in El Salvador that U.S-trained policemen are forced to flee and seek asylum in the United States. Additionally, gangs are the largest employer in El Salvador.
In many cases, claiming political or religious persecution should be a stronger alternative ground than PSG. As one of my friends recently pointed out, because of the incorrect precedents by the BIA, Immigration Judges almost always reject gang cases as actual or imputed political opinion. That’s plain wrong.
We need to start making the record and fighting back, using the large amount of available evidence and expert testimony on how gangs have infiltrated and influence every aspect of life in the Northern Triangle including, of course, politics and government. It’s time for the “EOIR charade” of “let’s not grant gang-based asylum cases” to end, once and for all.
Fifth, develop your record. The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.
Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.
Seventh, and finally, appeal to the “real” Article III Courts.I can’t over-emphasize this point. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.
Either the Article III’s do their jobs, step in, and put an end to this “theater of the absurd,” or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate Heroes” and those public officials who supported racism and “Jim Crow.”
Now is the time to take a stand for fundamental fairness, the true rule of law, and simple human decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever! Xenophobia never!
NBC: The documents obtained by NBC 7 Investigates show the U.S. Government has a secret database of journalists and immigration advocates where agents collected information on them and in some cases, placed alerts on their passports. Those alerts kept at least three photojournalists and an attorney from entering Mexico to work.
Gothamist: The tracking was revealed in an email sent by HSI, obtained by the magazine via a public records request, which contained a four-page “Anti-Trump Protest Spreadsheet 07/31/2018,” detailing the time, location, organizers and descriptions of 17 such events happening over a 17-day period last summer.
WaPo: President Trump on Monday will request at least $8.6 billion more in funding to build additional sections of a wall along the U.S.-Mexico border, setting up a fresh battle with Congress less than one month after he declared a national emergency.
WaPo: Army officials inadvertently disclosed sensitive information about hundreds of immigrant recruits from nations such as China and Russia, in a breach that could aid hostile governments in persecuting them or their families, a lawmaker and former U.S. officials said.
Bloomberg: Spending at U.S. immigration courts has almost doubled to $119 million in fiscal 2018 from $61 million in fiscal 2015, an analysis of contracts shows. ManTech International Corp. and Booz Allen Hamilton Holding Corp. are among those getting contracts, according to the Bloomberg Government study. But despite the spending and lawmakers’ efforts to bolster the immigration courts, the backlog has also doubled.
ICE: During this episode of Careers at ICE, hear from Special Agent Allison Carter Anderson and Special Agent Cory Downs, who will discuss what it’s like to be a Special Agent with ICE’s Homeland Security Investigations, or HSI.
Nation: Lost files, poor communication, faulty technology, and seemingly endless delays: federal audits show that Mikhail and Bayley’s experiences weren’t unusual for the agency, which spends $300 million per year on paper and has disastrously mismanaged a 13-year effort to go digital—often leaving immigrants to deal with the consequences.
ABC: Twenty-four migrant parents who returned to the United States on Saturday after they said they were separated and deported without their children are now being detained by the U.S. government, according to Erika Pinheiro, a lawyer for the families and the litigation and policy director of Al Otro Lado.
CIR: CE officials said the operation, called the Human Smuggling Disruption Initiative, targeted people who paid for coyotes to bring children across the border. However, a review of the operation by Reveal from The Center for Investigative Reporting casts doubt on that official narrative. A search of more than 1,400 smuggling-related cases filed in federal court in the seven months during and after the operation turned up only one case that was clearly connected to the program.
WaExaminer: President Trump’s team has been mulling the possibility of granting Temporary Protected Status, a legal protection from deportation that can be granted to people who confront “extraordinary and temporary conditions” in their home country, for weeks. They haven’t come to a decision yet, but congressional support for the proposal is building as lawmakers look to alleviate the humanitarian crisis under way as Maduro defies international calls to relinquish power.
WaPo: Last week, JPMorgan Chase, the nation’s largest bank, became the latest major corporation to distance itself from Trump’s immigration policies, concluding that its investments in private detention centers conflicted with its broader business strategy.
CNN: Homeland Security’s acting inspector general said the office is investigating how the agency is processing asylum seekers and whether undocumented parents were deported without their children. And Customs and Border Protection Commissioner Kevin McAleenan was forced to rehash the botched rollout of that policy to skeptical lawmakers.
TIME: As the U.S. Supreme Court weighs whether the Trump administration can ask people if they are citizens on the 2020 Census, the Census Bureau is quietly seeking comprehensive information about the legal status of millions of immigrants.
Gothamist: It’s been nearly a decade since the United States began allowing people with HIV from abroad to enter the country as immigrants. But the U.S. has never provided data on the number of HIV-positive refugees or asylum seekers admitted since the immigration law changed in 2010, despite efforts from groups including the Center for American Progress and Immigration Equality.
ABA: Immigrants seeking asylum may seek habeas review of the procedures leading to expedited removal orders, a federal appeals court has ruled. The March 7 decision by the 9th U.S. Circuit Court of Appeals at San Francisco has “sweeping implications,” according to a press release by the American Civil Liberties Union.
Lawfare: In the latest salvo in a long debate over the use of video teleconferencing (VTC) technology in immigration courts, several legal aid organizations filed a class-action lawsuit on Feb. 12 in New York challenging the U.S. Immigration and Customs Enforcement (ICE) practice of denying in-person hearings to immigrants.
Recorder: A federal judge in San Francisco has issued a decision finding that the Trump administration’s decision to add a question about citizenship to the 2020 U.S. Census was “arbitrary and capricious.”
DHS: The U.S. Border Patrol is currently encountering illegal immigration at the highest rates since 2007, according to new data. In fact, in February more than double the level of migrants crossed the border without authorization compared to the same period last year, approaching the largest numbers seen in any February in the last 12 years, The New York Times reported.
On 3/6/19, Senator Mazie Hirono (D-HI), along with Senator Catherine Cortez Masto (D-NV) and Senator Jeff Merkley (D-OR), announced the Fair Day in Courts for Kids Act of 2019, which would provide legal representation for unaccompanied immigrant children during removal proceedings. AILA Doc. No. 19030637
On 3/6/19, Senator Mazie Hirono (D-HI), along with Senator Catherine Cortez Masto (D-NV) and Senator Jeff Merkley (D-OR), announced the Immigration Court Improvement Act of 2019, would help insulate immigration judges from political interference or manipulation. AILA Doc. No. 19030638
DHS Secretary Nielsen announced the extension of the Temporary Protected Status (TPS) designation for South Sudan for 18 months, through November 2, 2020. Further details, including information on the re-registration process and EADs, will appear in a Federal Register notice. AILA Doc. No. 19030831
DOS announced that due to suspension of routine visa services, nonimmigrant visa applications may be submitted at an Embassy or Consulate outside of Venezuela. The U.S. Embassy in Bogota, Colombia has been designated as the primary site to process immigrant visas for residents of Venezuela. AILA Doc. No. 19022834
Thanks so much to Elizabeth for organizing the “New Due Process Army Reunion Dinner” at Le Botaniste following the FBA Asylum and Immigration Law Conference at New York Law School last Friday, March 8. It was wonderful seeing many former Georgetown Law students, Arlington Immigration Court interns, Judicial Law Clerks, and the many practitioners, retired judges, professors, FBA officials, and NAIJ members who stopped by to “celebrate due process” and envision what a brighter future for America could look like with an independent Immigration Court.
“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”
Dr. Martin Luther King, Jr.
Letters From the Birmingham Jail
New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.
Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.
Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.
The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court. We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.
Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America
Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.
Recently, the White House announced that it sought to reduce the current immigration court backlog by requesting appropriations for additional immigration judges and instituting performance metrics for all immigration judges.1 Sen. Claire McCaskill and Reps. Jim Sensenbrenner, Zoe Lofgren, and Trey Gowdy asked the General Accountability Office (GAO) the following questions: 1. What do Executive Office for Immigration Review (EOIR) data indicate about its caseload, including the backlog of cases, and potential contributing factors and effects of the backlog according to stakeholders? 2. How does EOIR manage and oversee immigration court operations, including workforce planning, hiring, and technology utilization? 3. To what extent has EOIR assessed immigration court performance, including analyzing relevant information, such as data on case continuances? 4. What scenarios have been proposed for restructuring EOIR’s immigration court system and what reasons have been offered for or against these proposals?2
A close read of the GAO’s report provides a chilling window into a system in chaos.
. . . .
Moving the immigration courts out of the executive branch
would help alleviate the perception that they are not independent tribunals with DHS and the respondents as equal participants. This would also cure the perception that the immigration courts have become so politicized that decisions change not with the law but with the politics of the current administration. Moreover, due to
the number of immigration judges who are former DHS attorneys and the co-location of some immigration courts with Immigration and Customs Enforcement offices, a broad perception exists that immigration judges and DHS attorneys are working together. This perception leads to significant lapses in perceived due process; for example, individuals don’t appear because they think the system is rigged, don’t appeal a bad decision because they lack resources after the long wait for a merits hearing, or don’t pursue potential relief for which they might be eligible. Plus, such a move would allow DHS the opportunity to appeal the Article I appellate division’s decisions to the circuit courts of appeals—providing those courts with a broader, more balanced view of issues and decisions of the trial-level immigration court.21 EOIR’s FY 2016 Statistics Yearbook indicates that one quarter of the initial cases decided were grants—none of which were ever reviewed by the courts of appeals.22
With a move to an Article I court, both trial level and appellate di- vision judges would have fixed terms of office and tenure protections that would facilitate judicial decisions without fear or favor. (If one believes that current members of the Board of Immigration Appeals are truly independent, one should research the “streamlining” of
the board down to just 11 members.23) Current board members and immigration judges are arguably government attorneys with the same client as DHS attorneys.24 They are subject to case completion goals—with or without express reliance on numerical goals—and may be subject to discipline by the attorney general.25 The currently proposed performance metrics are not new—most have been in place in one form or another since 2002.26
Last but not least, removing the immigration courts from the Department of Justice should speed the courts’ ability to regulate itself. First and foremost, the individual immigration judges would have control over their dockets and not be subject to decisions by headquarters to prioritize case A over case B (and then back again)—or send trial judges off to border courts to handle a few cases when their backlogged dockets have to be re-scheduled.27 The Article I court as a whole would be able to issue rules and regulations without the current byzantine requirements for consultation with a number of different offices and agencies. And, finally, hiring an immigration trial judge would not take two years.28
Other options exist; all have flaws. None of the options will single-handedly fix the backlog. We all have strong opinions about whether our nation’s immigration laws need a complete overhaul or a quick x—and how to go about either or both—but as we look to implement changes in our current immigration system, we must also aspire to lift the immigration courts from “halfway there” not-quite- courts to true Article I courts.
[Text of Footnotes Omitted]
Elizabeth J. Stevens is
the chair of the Federal
Bar Association’s Immi-
gration Law Section.
Read Betty’s highly cogent and incisive full article in The Federal Lawyer at the link! You’ll also be able to get all of Betty’s terrifically informative footnotes.
Betty is not just “any” lawyer. In addition to being the head of the FBA’s highly regarded and very active Immigration Law Section, Betty’s distinguished career in the Department of Justice has touched on all aspects of the Immigration Court practice.
While in law school at George Mason, Betty interned at the Board of Immigration Appeals during my tenure there. When I arrived at the Arlington Immigration Court, Betty was serving as the sole Judicial Law Clerk for all six Immigration Judges.
Betty then began a distinguished career at the Office of Immigration Litigation (“OIL”) where her primary job was to defend the orders of the Board of Immigration Appeals. She had a meteoric rise through the ranks of OIL, culminating in position as a Senior Supervisor and a trainer of newer OIL attorneys.
I well remember Betty shepherding numberous groups from OIL over to the Arlington Court to introduce them to immigration litigation at the “retail level of our justice system.” Since her retirement from Federal Service, Betty has been an energetic, well-informed, and steadfast voice for better legal education of attorneys on both sides practicing immigration law and for Immigration Court and BIA reform.
“Chilling” is exactly the right word to describe the utter chaos in our U.S. Immigration Courts today, as the backlog approaches 700,000 cases with no end in sight. It’s “chilling” to the individual Constitutional rights of all Americans, as well as “chilling” as to the fantastic degree of “malicious incompetence” of the DOJ’s pathetic attempt to administer the Immigration Courts under Jeff Sessions.
Betty is someone who has “looked at life from both sides now!” When Betty Stevens says the system is broken and “in chaos,” you’d better believe it’s true! Thanks again Betty for all you do! It’s an honor and a privilege to work with you on the “Due Process Team.”
Among other things, a reprint of my tribute to the late Hon. Juan Osuna is on p. 5. And, check out the picture from the Denver Conference on p. 6! Hope everyone will join us for the May 2018 Immigraton Section Conference in Memphis, TN. It will be spectacular!
Also congrats and best wishes to my good friend (and former Arlington Immigraton Court JLC) Betty Stevens on her election as Section Chair. We all look forward to working with you, Betty!