Federal Employees – Page 162 – immigrationcourtside.com

POLITICO: Breitbart, Other Right Wing Media Mount Unprecedented Personal Attacks On Career Public Servants Doing Their Jobs!

http://www.politico.com/story/2017/03/government-employees-conservative-media-236321

NAHAL TOOSI and ANDREW RESTUCCIA report:

“The articles — which have appeared in Breitbart News, the Conservative Review and other outlets — have alarmed veteran officials in both parties as well as current executive branch staffers. They say the stories are adding to tensions between career staffers and political appointees as they begin to implement Trump’s agenda, and they worry that the stories could inspire Trump to try purging federal agencies of perceived enemies.
The claims posted on the conservative sites include allegations of anti-Israel and pro-Iran bias against staffers at institutions such as the State Department and the National Security Council. Breitbart News, whose former executive chairman Steve Bannon is now Trump’s chief strategist, has even published lists of workers that the president should fire.

Washington veterans say they can’t recall similar targeting of government employees, who are required to stay apolitical and generally shun the spotlight.

“It’s deeply unfair to single people out and question their loyalty,” said William Burns, president of the Carnegie Endowment for International Peace and a former longtime diplomat. “It’s demoralizing for institutions. It’s demoralizing for professionals, and it’s offensive.”
Elliott Abrams, a veteran of the George W. Bush administration who was passed over last month for the role of deputy secretary of state because of his past criticism of Trump, agreed with Burns. Career staffers, he said “are trying to do their jobs and will respond to presidential leadership — including from a new president when an administration changes.”

U.S. civil and foreign service officers have long been seen by Republicans and Democrats as the backbone of government — subject matter experts who help political appointees administer their policy agenda regardless of who serves as commander in chief. But many in the Trump administration and its allies on the right are skeptical of career staffers, believing they are part of an American “deep state” that is working in secret to undermine the president.

Several people who have been targeted did not respond to requests for comment. But one said the information being spread is unnerving, in part because even if Trump’s top aides don’t always believe the reports they read in the conservative press, they may still feel pressure to act from voters in the Republican base who do believe the accounts.”

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Wow, what a grotesque distortion by the right wing media of the critical role of the career civil servant in American Government!

Political appointees in the Executive Branch are usually expected to show of loyalty to the President and the Administration. But, career public servants are non-political, merit-based, appointees who are sworn to uphold the Constitution of the United States, not to be personally loyal to any particular President or Administration. In fact, a requirement for any long-term career civil servant is the ability to serve conscientiously and effectively in administrations of either party which happens to be in power.

That being said, of course a civil servant who fails to carry out direct orders from his or her superiors, including political appointees, or who consciously undermines agency programs is insubordinate and subject to discipline up to and including removal. But, even in those situations, there are legal requirements which must be followed for discipline and removal. Civil servants can not be summarily dismissed just because they worked for or helped carry out the programs of the previous administration, which, after all, was their job.

In most countries outside the Unites States and a few other so-called “Western Democracies,” government is the personal possession of the ruler. He or she controls the mechanisms and staffing of government and hands out government positions as rewards to cronies, family members, and supporters. The devices of government are used largely to reward friends and punish and suppress enemies. The general populace has no real expectation of honesty, integrity, or assistance in any matter. Bribes are a routine requirement for obtaining any favorable action or avoiding any sanction. Indeed, I spent the better part of the last 13 years as an Immigration Judge hearing daily accounts of such abuse from individuals seeking refuge in the United States.

The modern U.S. system of government where civil servants owe allegiance to the Constitution and people of the United States, rather than to our individual political rulers, is the “gem” of our democracy, stability, and success as a nation. An attack on the merit civil service by the right wing media and also, sadly, by some GOP legislators is a direct attack on the foundations of our nation.

PWS

03/22/17

POLITICS: WASHPOST OPINION: DANA MILBANK: Party Of Putin? — GOP Seems Remarkably Unconcerned About Russian Meddling In Our Election!

https://www.washingtonpost.com/opinions/republicans-more-concerned-with-partisanship-than-russian-meddling/2017/03/20/040d66d2-0dba-11e7-9d5a-a83e627dc120_story.html?utm_term=.5ff6291b591

Milbank writes:

“This would be a good time to do something about the red menace of Vladimir Putin’s Russia. Instead, we’re talking about the Red Raiders of Texas Tech.

FBI Director James B. Comey, testifying Monday about his agency’s investigation into Russia’s attempt to tilt the 2016 election to Donald Trump, explained why it was “a fairly easy judgment” that Trump was Putin’s favored candidate: “Putin hated Secretary Clinton so much that the flip side of that coin was he had a clear preference for the person running against the person he hated so much.”

But Rep. K. Michael Conaway (R-Tex.), a senior member of the House Intelligence Committee, was having none of it. “Yeah, that logic might work on Saturday afternoon when my wife’s Red Raiders are playing the Texas Longhorns.” Conaway doubted such reasoning “all the rest of the time.”
So, Putin wanted Hillary Clinton to lose but didn’t want Trump? Maybe he was for Gary Johnson?

Comey tried to be patient. “Whoever the Red Raiders are playing, you want the Red Raiders to win,” he explained. “By definition, you want their opponent to lose.”
Conaway was fourth and long. He scrambled to formulate another question, then punted: “Well, let me finish up then.”

Comey’s testimony confirmed what was widely suspected: The FBI is investigating whether the president’s campaign colluded with a powerful American adversary in an attempt to swing the election. But instead of being shaken from complacency and uniting to make sure this never happens again, the Republican majority on the House Intelligence Committee mounted a reflexive defense of Trump.

The partisan response made it plain that there will be no serious congressional investigation of the Russia election outrage, nor any major repercussions for Russia. We were attacked by Russia — about this there is no doubt — and we’re too paralyzed by politics to respond.

Trump, whose claim that President Barack Obama wiretapped Trump Tower was dismissed by Comey on Monday, continued to fire his weapons of mass distraction Monday morning, tweeting about ties between Clinton and Russia and claiming “the real story” is who leaked classified information.
This is to be expected from Trump. The disheartening part was that most Republicans on the panel, which is supposed to investigate Trump, instead slavishly echoed his excuses.”

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The transformation of the GOP is an interesting experience for baby boomers like me who grew up in the 1950s when the GOP saw a “Red under every bed.”

But, times have changed. Although Putin is a KGB vet and seems to remain wedded to their brutal methods of eliminating opposition, suppressing dissent, and “messing with the heads of the West,” some folks seem to be too busy fretting about the imagined threat to our national security from Syrian refugee children to want any serious inquiry or accounting for what Putin and the Russians are up to in the U.S.

PWS

03/21/17

REUTERS: More “Aimless Docket Reshuffling” Underway As U.S. Immigration Courts Shift Priorities And Detail Judges — One Certain Result: Each Detailed Judge Will Leave Behind A Wake Of Rescheduled Cases, Unmet Expectations, & Docket Chaos!

http://mobile.reuters.com/article/idUSKBN16O2S6

Julia Edwards Ainsley reports:

“Former immigration judge and chairman of the Board of Immigration Appeals Paul Schmidt said the Trump administration should not assume that all those charged with crimes would not be allowed to stay in the United States legally.

“It seems they have an assumption that everyone who has committed a crime should be removable, but that’s not necessarily true. Even people who have committed serious crimes can sometimes get asylum,” Schmidt said.

He also questioned the effectiveness of shuffling immigration judges from one court to another, noting that this will mean cases the judges would have handled in their usual courts will have to be rescheduled. He said that when he was temporarily reassigned to handle cases on the southern border in 2014 and 2015, cases he was slated to hear in his home court in Arlington, Virginia had to be postponed, often for more than a year.

“That’s what you call aimless docket reshuffling,” he said.

Under the Obama administration, to avoid the expense and disruption of immigration judges traveling, they would often hear proceedings from other courthouses via video conference.

The judges’ reshuffling could further logjam a national immigration court system which has more than 540,000 pending cases.

The cities slated to receive more judges have different kinds of immigrant populations.”

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Read Julia’s complete article at the above link.

I can’t point to any empirical study. But, my observation and experience as a U.S. Immigration Judge certainly was that the chance of completing already scheduled cases on an Immigration Judge’s “home court” docket was much greater than the chance of completing randomly scheduled cases as a “visiting judge.”

The U.S. Immigration Court is a high volume operation. Therefore, the attorneys on both sides are almost always “repeat customers” on a judge’s home docket. That gave me “judicial leverage” to complete cases.

The attorneys knew me and were familiar with my expectations and my prior rulings. Because they saw me week after week, year after year, they had every incentive to work cooperatively with each other and with me to meet my expectations and keep our “joint docket” moving on a reasonable schedule. It was in everyone’s self-interest.

A visiting judge is often confronted with attorneys who are used to doing things “other ways” and have little interest in humoring or meeting the expectations of a temporary judge whom they are unlikely ever to come before again in the future. Therefore, the chances of a visiting judge not getting the extra cooperation he or she needs and not getting the types of preparation and evidence necessary to complete the cases on schedule increases. In other words, a visiting judge is deprived of the important opportunity to establish and enforce “mutual expectations.”

Then, there is the “busy work” created for the staff by having to reset already scheduled cases, answer questions from panicked or angry attorneys on both sides, and deal with the slew of motions which such rescheduling inevitably generates.

The only way to “fix” our broken U.S. Immigration Court system is to allow individual judges to control their own dockets by scheduling cases in a reasonable manner, hearing most cases at the scheduled times, thereby establishing reasonable, predictable case cycles (NOT “rocket dockets), and setting and enforcing reasonable expectations (NOT “case completion goals” set by non-judicial bureaucrats).

Having Immigration Court dockets rearranged and “reprioritized” by bureaucrats in Washington, usually to achieve highly inappropriate enforcement objectives (rather than due process) demonstrably harms the system and the delivery of justice. The Obama Administration made things worse. The Trump Administration seems determined to make them completely untenable.

It’s time for an independent, due process oriented U.S. Immigration Court!

PWS

03/17/17

HuffPost: The Dark Lord’s Budget

http://www.huffingtonpost.com/entry/donald-trump-budget_us_58cb0384e4b0ec9d29da5634

“A presidential budget isn’t so much a policy proposal as a statement of an administration’s moral vision for the country. The budget presented by President Donald Trump on Thursday is a document fundamentally unconcerned with the government’s role in improving the plight of its most vulnerable citizens.

That message is clear in the budget’s topline proposals and its deeper details. Trump calls for a $54 billion boost in defense spending and immigration enforcement. More border patrol agents, more Immigration and Customs Enforcement officers, more fighter jets that don’t work, and a border wall with Mexico. To offset those fresh expenses, he wants to take an ax to a host of anti-poverty programs ― everything from public housing to food programs helping elderly people with disabilities.”

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Tax breaks for the rich, more bombs for the military, an un-needed wall, dirty air, no diplomacy, and lumps of coal for the poor.

PWS

03/16/17

WashPost: Trump & Advisers Are Own Worst Enemies — Intemperate Statements And Overt Bias Undermine Litigation — Clients Should Not Comment On Pending Cases Is One Of The Oldest Rules Of The Game — Trump & Co. Should Follow It If They Want To Be “Winners”

https://www.washingtonpost.com/politics/trump-and-his-advisers-cant-keep-quiet–and-its-becoming-a-real-problem/2017/03/16/157d2100-0a63-11e7-93dc-00f9bdd74ed1_story.html?hpid=hp_rhp-top-table-main_trumpwords-815pm:homepage/story&utm_term=.9888c4c5deac

“But perhaps nowhere have Trump’s words been as damaging as his attempts to implement the travel ban — which may have been damaged further by Trump’s remarks at his Nashville rally. Trump inflamed controversy during the campaign by calling for a temporary ban on all foreign Muslims from entering the United States, then later shifted to vague pledges to ban people from countries with a history of Islamist terrorism.

“I am sure that challengers will use the president’s comments last night as further evidence that the true intent of his executive order is to bar Muslim immigration,” said Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School.”

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Trying to defend this gang and some of their ill-conceived policies and unnecessarily inflammatory statements is going to be a challenge, even for the most savvy Government attorney.

PWS

03/16/17

Trump Budget Calls For 75 New U.S. Immigration Judge Teams

https://www.washingtonpost.com/politics/trump-budget-calls-for-border-wall-border-prosecutions/2017/03/16/eba18240-0a80-11e7-bd19-fd3afa0f7e2a_story.html?utm_term=.76f73186b931

The Washington Post writes:

“Trump’s spending blueprint released Thursday is light on specifics, but makes clear that his campaign pledge to confront illegal immigration is a top priority. Even as he plans to cut the Justice Department’s budget by more than $1 billion, Trump is asking for hundreds of millions of dollars to hire 60 federal prosecutors and 40 deputy U.S. Marshals to focus on border cases.

He also wants to boost immigration courts by $80 million to pay for 75 additional teams of judges. That would speed up removal proceedings for people in the United States illegally and address a backlog of more than 540,000 pending cases. The plan foreshadows a greater emphasis on prosecuting people who cross the border illegally, those who come back after being deported, and anyone tied to human and drug smuggling.

Trump’s proposal also calls for adding $1.5 billion to Immigration and Customs Enforcement’s budget to find, detain and deport immigrants living in the U.S. illegally, along with more than $300 million to hire 500 new Border Patrol agents and 1,000 immigration agents.

The president’s budget is the first step in a lengthy process of funding government agencies, and it’s not clear which of Trump’s priorities will be approved by Congress.”

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My take:

Undoubtedly, the Immigration Court needs more Immigration Judges. On the positive side:

The Administration recognizes the need;

By referring to “teams” it appears that the Administration recognizes that judges can’t function without support, space, computers, etc.

On the negative side:

Given EOIR’s recent past performance, it could take the rest of the Administration to fill these new positions and expand Immigration Court facilities to accommodate the new judges. There currently are approximately 70 vacant IJ positions, most from the last Congressional increase;

There are likely to be a fair number of judicial retirements, compounding the hiring problems;

What kind of Immigration Judges would Sessions hire? He has never shown much respect for due process, fairness, or the rights of migrants. So, if he hires “Immigration Judges in his own image,” as he is legally entitled to do, that’s going to be a “due process disaster” for individuals seeking justice in Immigration Court;

Even with 449 fully trained judges on the bench, it would take nearly 1.6 years just to adjudicate currently pending cases. Piling more “priority” cases on top without any reasonable plan for deciding the currently pending cases is likely just to add to the backlogs and waiting times and further compromise due process and justice. It will undoubtedly result in more “aimless docket reshuffling” (“ADR”) which expends effort without producing any final dispositions.

There is no mention of needed reforms in Immigration Court structure, administration, and technology. Without those needed reforms, more judicial positions are unlikely to solve the Immigration Court’s deep existing problems in delivering due process and justice in a timely fashion.

Meanwhile, some sources have reported that existing Immigration Judges have been asked to be available for possible details outside of their “home” courts for up to 10 months of the year. As I have pointed out before, each time a sitting Immigration Judge is detailed, he or she leaves behind a full docket of cases which must be rescheduled.

Ordinarily, this results in cases scheduled for the near future being “reset” to dates at the end of overcrowded dockets, usually several years in the future. Plus, every act of mass rescheduling creates staff burdens that result in defective notices or other important work (such as answering phones, logging in new cases, or filing briefs and motions for upcoming cases) being put on hold.

PWS

03/16/17

IMMIGRATION IMPACT: More Commentary On How The U.S. Immigration Court In Atlanta Mocks The Due Process Mission of EOIR

http://immigrationimpact.com/2017/03/10/atlanta-immigration-court/

Hilda Bonilla writes:

“Observers found that the immigration judges made prejudicial statements, demonstrated a lack of courtesy and professionalism and expressed significant disinterest toward respondents. In one hearing, an attorney argued that his client should be released from detention because he was neither a threat to society nor a flight risk. In rejecting the client’s bond request, the immigration judge reportedly compared an immigrant to a “person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let him in.

When the attorney disagreed with this comparison, the immigration judge responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” Another immigration judge reportedly “leaned back in his chair, placed his head in his hands, and closed his eyes” for 23 minutes while the respondent described the murder of her parents and siblings during an asylum hearing.

Other critical problems include disregard for legal arguments, frequent cancellation of hearings at the last minute, lack of individualized consideration of bond requests, and inadequate interpretation services for respondents who do not speak English. The observers also reported that immigration judges often refer to detention centers as “jails” and detainees as “prisoners,” undermining their dignity and humanity and suggesting that the IJs perceive detained immigrants as criminals. Compounding this problem, detained immigrants who appear in immigration court in Atlanta are required to wear jumpsuits and shackles.

Many of these practices stand in stark contrast with the Executive Office of Immigration Reviews’ Ethics and Professionalism Guide for Immigration Judges, which state, among other things, that “an immigration judge… should not, in the performance of official duties, by word or conduct, manifest improper bias or prejudice” and that immigration judge should be “patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers, and other with whom the immigration judge deals in his or her capacity.”

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“[P]atient, dignified, courteous, . . . professional,” unfortunately does not describe the judges of the U.S. Immigration Court in Atlanta as portrayed in this study and numerous articles from various sources. As I have pointed out before, although the BIA finally did “call out” one Immigration Judge in Atlanta for his outrageous disregard of due process and appropriate judicial conduct in Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence), the BIA has let this problem fester for far, far too long. Indeed, the indefensible 2% asylum grant rate suggests that the BIA has been derelict in its duty to insure due process, fairness, and compliance with the appropriate, generous legal standards in asylum cases for some time.

Without a more effective effort by the BIA, this problem is unlikely to be solved any time in the near future. While administrative judges at EOIR Headquarters in Falls Church, VA may investigate complaints and correct instances of unprofessional conduct and rudeness, they (quite properly) lack authority to change the decisions in particular cases. Only the BIA, the Attorney General, the Court of Appeals (in this case the 11th Circuit), or the Supreme Court can correct legal errors.

The conduct of the Immigration Judges in Atlanta and some other locations diminishes the efforts of the vast majority of U.S. Immigration Judges, such as my former colleagues in the Arlington Immigration Court, who strive extremely hard to provide due process and impartial judging under extraordinarily difficult circumstances in a system that its not necessarily designed and operated with due process in mind. But, unfair as as the wayward judges might be to their colleagues elsewhere, the real victims of their unprofessional conduct are the individuals who do not receive the fair, courteous, impartial, professional due process adjudications to which they are entitled under our Constitution. And, one has to ask what purpose is served by a “court” which consistently fails to deliver on its one and only mission: guaranteeing fairness and due process for all?

PWS

03/13/17

CNN: Is Trump’s Order To Hire 5,000 More Border Agents a “10-Year Plan?”

http://www.cnn.com/2017/03/07/politics/border-agents-cbp-hiring-slow/index.html

Tal Kopan reports

“Washington (CNN) — Optimistic internal estimates say that it could still take five to 10 years for Customs and Border Protection to hire all the additional agents President Donald Trump has ordered, even if the agency gets a wish list of requests to make hiring easier, according to documents obtained by CNN.

CBP has long struggled to even keep up with attrition in its ranks, and was staffed below currently targeted levels even before the President’s January executive orders called for 5,000 more agents.
CBP’s acting commissioner spelled out a series of steps the agency would need, either from other agencies, its parent DHS or Congress, in order to hire more agents in a memo for the deputy secretary last month, according to a copy obtained by CNN.
But even those measures would only help so much, the memo makes clear.
The hurdles are just the latest practical difficulty faced by Trump’s attempts to substantially increase immigration enforcement in the US. His moves to vastly increase the number of undocumented immigrants detained and deported have rankled Democrats and spread fear in immigrant communities. In addition to his long-promised border wall, Trump has ordered a substantial increase in personnel, including the CBP surge.”

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Read the full article at the link. Let’s see, if hiring 5,000 additional Border Patrol Agents takes DHS as long as 10 years, how long will it take to hire 10,000 additional ICE Agents? 20 years? 25 years?

As Nolan Rappaport has mentioned to me, it’s critical that high standards be maintained. Not only does lowering standards and training to meet goals increase the chances of due process and human rights violations, but it could be an opportunity for corruption and for international criminal cartels and gangs to penetrate the U.S. law enforcement system.

PWS

03/08/17

Arlington Immigration Court Report: New — 10 Judges, No Waiting (Well, At Least The First Part Isn’t “Fake News”)

The local AILA Chapter reports that effective on March 6, 2017, the U.S. Immigration Court in Arlington, Virginia will have ten publicly accessible courtrooms, on two floors “up and running.” Here’s the “lineup:”

2nd floor
Courtroom 1 – Judge Robert P. Owens
Courtroom 2 – Judge Thomas G. Snow
Courtroom 3 – Judge Lawrence O. Burman
Courtroom 4 – Judge J. Traci Hong
Courtroom 5 – Judge Rodger C. Harris
Courtroom 6 – Judge John M. Bryant
Courtroom 7 – Judge Quynh V. Bain
Courtroom 8 – Judge Emmett D. Soper

4th floor
Courtroom 15 – Judge Karen D. Stevens
Courtroom 16 – Judge Roxanne C. Hladylowycz

And, there are plans to open the 3rd floor with six new courtrooms and judges in the near future! Combined with the news that the Immigration Court has been exempted from the hiring freeze by AG Jeff Sessions, http://wp.me/p8eeJm-qP that should bring much-needed relief to the conscientious, hard-working judges of Arlington, the local immigration bar, and the Office of Chief Counsel, and the many individuals with cases pending in Arlington. With at least 30,000 cases by last count, help could not come fast enough!

The only question I have: Will progress be derailed by detailing some or all of the Arlington Judges to the Southern Border as part of the Administration’s new immigration enforcement and detention initiative? Only time will tell. Stay tuned.

But, for now, congrats to the Arlington Immigration Court and to EOIR for a job well done and for making needed progress on the due process front!

PWS

03/05/17

Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?”

https://www.splcenter.org/sites/default/files/2017-atl_complaint_letter_final.pdf

“We write to provide you with findings of observations of the Atlanta Immigration Court conducted by Emory Law students, in conjunction with the Southern Poverty Law Center, during the fall semester of 2016. Six Emory Law students observed the Court in September and October 2016 seeking to identify any apparent factors leading to the Court’s reputation as one where rule of law principles are not widely respected.1 Atlanta Immigration Judges (IJs) “have been accused of bullying children, victims of domestic abuse and asylum seekers;” while “[immigration] attorneys complain that judges impose such stringent requirements on their clients that they are

1 See Elise Foley, Here’s Why Atlanta Is One of The Worst Places To Be An Undocumented Immigrant, HUFFINGTON POST, May 25, 2016, http://www.huffingtonpost.com/entry/deportation-raids-immigration- courts_us_574378d9e4b0613b512b0f37; Chico Harlan, In an Immigration Court That Almost Always Says No, A Lawyer’s Spirit is Broken, WASHINGTON POST, Oct. 11, 2016, https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers- spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html?utm_term=.430a15e12a55; Ted Hesson, Why It’s Almost Impossible to Get Asylum in Atlanta, VICE MAGAZINE, Jun. 8, 2016, http://www.vice.com/read/why-its-almost-impossible-to-get-asylum-in-atlanta. See also Southern Poverty Law Center, Immigrant Detainees in Georgia More Likely to Be Deported Than Detainees Elsewhere; Georgia Detainees Less Likely to Be Released on Bond (2016), https://www.splcenter.org/news/2016/08/23/immigrant- detainees-georgia-more-likely-be-deported-detainees-elsewhere.

impossible for an immigrant to meet.”2 Atlanta’s Immigration Court records one of the highest denial rate of asylum applications–98 percent–in the United States.3

The observations identified several areas of key concern that indicate that some of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice.”

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Read the complete letter to EOIR Director Juan Osuna at the link. Gotta ask: How does the performance of the Atlanta Immigration Court fulfill the “EOIR Vision” of: “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all?” Where has the Board of Immigration Appeals (“BIA”) in been on these alleged abuses? Why doesn’t the BIA live up to the EOIR Vision? If it’s this bad now, how bad will it get under the Trump Administration?

PWS

03/02/17

WALTER PINCUS IN THE NEW YORK REVIEW OF BOOKS: The Coming Immigration Court Disaster!

http://www.nybooks.com/daily/2017/03/01/trump-us-immigration-waiting-for-chaos/?utm_medium=email&utm_campaign=NYR Dennett immigration reform Chopin&utm_content=NYR Dennett immigration reform Chopin+CID_c0a3091a06cff6ddbb541b093215f280&utm_source=Newsletter&utm_term=US Immigration Waiting for Chaos

“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.

The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.

But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?

. . . .

For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.

Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”

The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.

The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?

As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.

Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.

Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”

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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”

As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.

Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.

In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.

Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”

No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.

PWS

03/02/17

SLATE: Bannon, Sessions, Miller Plan To Use Justice Department To Implement Far Right Agenda!

https://www.nytimes.com/2017/02/28/magazine/jeff-sessions-stephen-bannon-justice-department.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region®ion=top-news&WT.nav=top-news

Emily Bazelon reports:

“One night in September 2014, when he was chief executive of Breitbart News, Stephen Bannon hosted cocktails and dinner at the Washington townhouse where he lived, a mansion near the Supreme Court that he liked to call the Breitbart Embassy. Beneath elaborate chandeliers and flanked by gold drapes and stately oil paintings, Jeff Sessions, then a senator from Alabama, sat next to the guest of honor: Nigel Farage, the insurgent British politician, who first met Sessions two years earlier when Bannon introduced them. Farage was building support for his right-wing party by complaining in the British press about “uncontrolled mass immigration.” Sessions, like other attendees, was celebrating the recent collapse in Congress of bipartisan immigration reform, which would have provided a path to citizenship for some undocumented people. At the dinner, Sessions told a writer for Vice, Reid Cherlin, that Bannon’s site was instrumental in defeating the measure. Sessions read Breitbart almost every day, he explained, because it was “putting out cutting-edge information.”

Bannon’s role in blocking the reform had gone beyond sympathetic coverage on his site. Over the previous year, he, Sessions and one of Sessions’s top aides, Stephen Miller, spent “an enormous amount of time” meeting in person, “developing plans and messaging and strategy,” as Miller later explained to Rosie Gray in The Atlantic. Breitbart writers also reportedly met with Sessions’s staff for a weekly happy hour at the Union Pub. For most Republicans in Washington, immigration was an issue they wished would go away, a persistent source of conflict between the party’s elites, who saw it as a straightforward economic good, and its middle-class voting base, who mistrusted the effects of immigration on employment. But for Bannon, Sessions and Miller, immigration was a galvanizing issue, lying at the center of their apparent vision for reshaping the United States by tethering it to its European and Christian origins. (None of them would comment for this article.) That September evening, as they celebrated the collapse of the reform effort — and the rise of Farage, whose own anti-immigration party in Britain represented the new brand of nativism — it felt like the beginning of something new. “I was privileged enough to be at it,” Miller said about the gathering last June, while a guest on Breitbart’s SiriusXM radio show. “It’s going to sound like a motivational speech, but it’s true. To all the voters out there: The only limits to what we can achieve is what we believe we can achieve.”

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Talk about “the fox guarding the chicken coop!” And, I don’t share Bazelon’s view that DOJ career attorneys will be a significant moderating influence.

They all work for Jeff Sessions. Resisting Administration policies or positions could be considered insubordination — a ground for firing. Short of that, those who don’t “get with the program” could find themselves demoted, denied pay increases, transferred to obscure offices (perhaps in different locations), or given meaningless “busywork” assignments as punishment. In DOJ lingo the disfavored and exiled are known as “hall walkers.”

Yes, it’s true that in many past Administrations those with opposing views were tolerated and often even had their differing perspectives considered and occasionally adopted. That often had a moderating effect. But, that assumes an Administration acting in good faith. Sounds like Sessions and his colleagues have already decided to dismantle those parts of the U.S. justice system that don’t fit their ultra nationalist, restrictionist, white-power-Christian-oriented agenda. It could be a long four years at the DOJ for career lawyers (those who survive). Sad!

PWS

02/28/17

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

DHS Trumpets The New Bureaucratic Doublespeak: You’re All Targets, But Don’t Worry Because We Don’t Have The Ability To Do What We Say We’ll Do — And, When We Do Deport You (Ideally, Without A Hearing & After Detaining You Just Because You’re You & We Can), We’ll Be Polite & Humane About It — We’ve Finally “Taken The Shackles” Of Restraint, Wisdom & Prudence Off Our Agents So That They Are Free To Be Nice & Reasonable — And We’re Planning To Bring On Thousands Of Minimally Trained New Agents And Local Cops To Do What We Can’t Do Now — But, Don’t Worry, It’ll All Work Out For You Back In Mexico, El Salvador, Somalia,Or Wherever You Belong

https://www.washingtonpost.com/politics/trump-administration-seeks-to-prevent-panic-over-new-immigration-enforcement-policies/2017/02/21/a2a695a8-f847-11e6-bf01-d47f8cf9b643_story.html?tid=hybrid_experimentrandom_3_na&utm_term=.20ca5c9e4384

David Nakamura Reports in the Washington Post:

“The Trump administration on Tuesday sought to allay growing fears among immigrant communities over wide-ranging new directives to ramp up enforcement against illegal immigrants, insisting the measures are not intended to produce “mass deportations.”

Federal officials cautioned that many of the changes detailed in a pair of memos from Homeland Security Secretary John F. Kelly will take time to implement because of costs and logistical challenges and that border patrol agents and immigration officers will use their expanded powers with care and discretion.

Yet the official public rollout of Kelly’s directives, first disclosed in media reports over the weekend, was met with outrage from immigrant rights advocates over concerns the new policies will result in widespread abuses as authorities attempt to fulfill President Trump’s goals of tightening border control.

Trump took a hard line against illegal immigration during his campaign, at times suggesting he would seek to create a nationwide “deportation force” to expel as many of the nation’s estimated 11 million unauthorized immigrants as possible.

In a conference call with reporters, a senior Department of Homeland Security official moved to avert what he called a “sense of panic” among immigrant communities.”

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

Summary: Duh! So, we roll out this big new program in the first 35 days of the new Administration to great fanfare. But, nobody considered the resource and funding implications with Congress. So, it’s much ado about nothing (for now). But, don’t you dare lie about all the great things we’ve already accomplished. Watch for the biased media falsely claiming that it’s all smoke and mirrors or that we’re already rounding up some of the folks we said we’d deport. We mean what we say, but we’re not actually doing what we said we’d do. What kind of fools would panic about that?

PWS

02/22/17

Like It Or Not, Trio Of Cases Now Before The Supremes Will Affect Trump Administration’s Enforcement Program — Issues Involve Long-Term Detention & Liability Of Government Officials

http://www.huffingtonpost.com/entry/scotus-trump-immigrants_us_58a70e9be4b037d17d271444?tdoe77ccqm362bj4i

Lawrence Hurley reports in HuffPost:

“The U.S. Supreme Court will decide three cases in coming months that could help or hinder President Donald Trump’s efforts to ramp up border security and accelerate deportations of those in the country illegally.

The three cases, which reached the court before Democratic President Barack Obama left office, all deal broadly with the degree to which non-citizens can assert rights under the U.S. Constitution. They come at a time when the court is one justice short and divided along ideological lines, with four conservatives and four liberals.

The justices will issue rulings before the end of June against the backdrop of high-profile litigation challenging the lawfulness of Trump’s controversial travel ban on people traveling from seven predominantly Muslim countries.

The most pertinent of the three cases in terms of Republican Trump administration priorities involves whether immigrants in custody for deportation proceedings have the right to a hearing to request their release when their cases are not promptly adjudicated.

The long-running class action litigation, brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants detained for more than six months, includes both immigrants apprehended at the border when seeking illegal entry into the United States and legal permanent residents in deportation proceedings because they were convicted of crimes. The case also could affect long-term U.S. residents who entered the country illegally and have subsequently been detained.

The Trump administration has said it wants to end the release of immigrants facing deportation and speed up the process for ejecting them from the country. A decision in the case requiring additional court hearings could have very direct implications for the administration’s plans, said ACLU lawyer Ahilan Arulananthan, especially since immigration courts currently have a backlog of more than 500,000cases.

The ACLU estimates that up to 8,000 immigrants nationwide at any given time have been held for at least six months. A U.S. Immigration and Customs Enforcement official was unable to immediately confirm data on length of detention but said that in fiscal year 2016, the average daily count of detainees was just under 35,000.

“If Trump wants to put more people in deportation but does not increase the number of immigration judges, then people are going to have to wait longer and longer to get a hearing,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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I would think that nominating a Solicitor General to be in charge of all Federal litigation, particularly at the Supreme Court level, would be a very high priority for President Trump.

PWS

02-17-17

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