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What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?

What Are The Odds Of The U.S. Immigration Courts’ Survival?

by Paul Wickham Schmidt

Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.

So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.

Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.

While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.

At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.

Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.

Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”

The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.

So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.

To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/02/13/will-strong-defensive-tactics-jam-immigration-jails-clog-immigration-courts-wsj.aspx?Redirected=true

PWS

02/14/17

The Sessions Era Begins At The USDOJ

https://www.washingtonpost.com/blogs/plum-line/wp/2017/02/09/jeff-sessions-is-now-the-attorney-general-here-are-the-four-biggest-things-to-fear/

Greg Sargent writes in The Morning Plum in today’s Washington Post:

“Jeff Sessions has now been confirmed as attorney general, and this vaults him to a position in American life that is unique. Perhaps more than any other person, Sessions stands at the nexus of many of the potential plot lines that we should fear most about the Donald Trump presidency.

Here are the possibilities we need to worry about. President Trump’s refusal to divest from his business holdings creates the possibility of untold conflicts of interest and even full-blown corruption on an unprecedented scale. The hostility of Trump and Republicans to a full, independent probe into Russian meddling in the election may mean there will never be a full public accounting of what happened, which could make a repeat more likely.
Trump’s year of lies about voter fraud, and his campaign vows of explicit persecution of minorities, could signal further voter suppression efforts, weakened civil rights protections, and the use of state power against Muslims and undocumented immigrants in draconian or discriminatory ways. Trump’s well-documented authoritarian impulses could conceivably tip him into genuine authoritarian rule, in which, for instance, the power of the state is turned against critics or political opponents.

Sessions is now in a unique position to facilitate and enable — or, by contrast, to act as a legal check on — some or all of these possibilities, should they metastasize (or metastasize further) into serious threats to vulnerable minorities or, more broadly, to our democracy. Here are the things to fear:

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You can read the full article at the link. Although noting Session’s involvement with immigration, Sargent overlooks what is likely to be AG Session’s biggest legacy, for better or, as many expect, for worse. That is his unilateral control over the United States Immigration Courts, perhaps America’s largest and most important Federal Court System, with 530,000+ pending cases, and hundreds of thousands (if not millions) about to be pushed into the already clogged “pipeline” under President Trump’s Executive Orders on immigration enforcement. Unlike most administrative courts within the Executive Branch, the Immigration Court not only has authority to order what in many cases can be indefinite “civil detention” but also to impose permanent exile on individuals (and, as a de facto matter on their U.S. citizen families), including some who were legally admitted to the United States and have resided here many years with “green cards.” Even in the area of criminal law, few judges in any system possess comparable authority to permanently affect the lives of so many individuals, their families, and their communities.

PWS

02/09/17

Julia Preston (Retired From The NYT, Now At The Marshall Project) Explains Trump’s Immigration Executive Orders

https://www.themarshallproject.org/2017/02/03/decoding-trump-s-immigration-orders?utm_medium=social&utm_campaign=share-tools&utm_source=facebook&utm_content=post-top#.aYfs86zr3

“The refugee program was not the only part of the immigration system that sustained shocks this week from three executive orders by President Donald Trump. While the White House scrambled to contain the widening furor over his ban on refugees and immigrants from seven Muslim-majority countries, the administration was laying the groundwork for a vast expansion of the nation’s deportation system. How vast? Here’s a close reading of Trump’s orders:”

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Read Julia’s full analysis at the link.

Not to beat a dead horse, but it’s hard to resist. To show what a “parallel universe” executives at the EOIR live in, the article says that without the Trump priorities EOIR believes it could have begun to reduce the backlog with 330 Immigration Judges (they currently have 305, and approximately 370 are authorized). What!!!!

Math wasn’t my strong point, but let’s do some basics here. There are more than 530,000 currently pending cases in the U.S. Immigration Courts. An experienced fully trained, fully productive Immigration Judge (which none of the new Immigration Judges will be for several years, if then) can do a reasonable job on at best 750 cases per year. So, 330 fully trained Immigration Judges might be able to do approximately 250,000 cases per year without stomping on individuals’ due process rights. That’s barely enough to keep up with the normal (pre-Trump Administration) annual filings of new cases, let alone make realistic progress on a one half million backlog.

But, even that would be highly optimistic. The real minimum number of Immigration Judges needed to keep the system afloat and “guarantee fairness and due process for all,” even without the distorted Trump priorities, is 500 Immigration Judges as determined by the consensus of “outside-EOIR/DOJ management” observers. And, that’s not even considering that many of the best and most experienced Immigration Judges will be retiring over the next few years.

So, even without the Trump Executive Orders, EOIR executives were living in a dream world that had little relationship to what is happening at the “retail level” of the system, in the Immigration Courts. And, because none of the folks who sit in the EOIR HQ “Tower” in Falls Church, well intentioned as they might be, actually hear and decide cases in the Immigration Courts, the gap between reality and bureaucracy at EOIR is simply off the charts!

This system needs help, and it needs it fast! The DOJ and EOIR, as currently structured and operated, simply cannot solve the real problems of one of America’s largest, most important, most under-resourced, and most out off control court systems. Unless the Trump Administration and Congress can “get smart” in a hurry and pull together on legislation to get the Immigration Courts out of the DOJ and into an independent Article I structure, this system is heading for a monumental due process train wreck that could threaten to take the rest of the U.S. justice system along with it.

PWS

02/06/17

From “Sputnik News:” “Trump Selects Three Legal Veterans for Senior Justice Department Posts”

https://sputniknews.com/us/201702011050221283-trump-three-candidates-justice-dept-posts/

“WASHINGTON (Sputnik) — Trump announced he is going to nominate Rod J. Rosenstein of Maryland to be Deputy Attorney General, Rachel B. Brand of Iowa to be Associate Attorney General and Steven Andrew Engel of the District of Columbia to be Assistant Attorney General, according to the release.

Rosenstein was previously US Attorney for the federal, or District Court of Maryland, Brand served as an assistant attorney general under President George W. Bush and Engel was a successful litigator who had served previously as a deputy assistant attorney general.”

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Sounds like the type of candidates most any Republican President would appoint. The “real question” is will they have any real influence on policy at the DOJ or will they be confined to “working out the Xs and Os of daily agency operations” while aides at the White House “pull the strings” with Attorney General Sessions on major legal and policy issues (like the operation of the U.S. Immigration Courts).

Too early to tell, of course. But, it’s something that Democrats should at least raise during the confirmation process. I wouldn’t expect any of these candidates to have difficulty getting confirmed.

PWS

01/01/17

BREAKING: From “The Hill” — Sessions Nomination As AG Approved By Senate Judiciary Committee — Moves To Full Senate Where Approval Is A Foregone Conclusion!

http://thehill.com/homenews/administration/317035-sessions-approved-by-senate-committee

The Hill writes:

“A Senate committee voted to confirm Sen. Jeff Sessions (R-Ala.) to be attorney general on Wednesday, two days after the growing controversy surrounding President Trump’s travel ban on seven Muslim nations led to the firing of an acting attorney general for insubordination.
The Senate Judiciary Committee approved Sessions 11-9 along party lines. His nomination now goes to the floor, where he is widely expected to be confirmed given the GOP’s 52-seat majority.

The committee vote comes as Senate Democrats have sought to slow progress on other Trump nominees, including Steve Mnuchin, the pick at the Treasury Department, and Rep. Tom Price (R-Ga.), Trump’s pick to lead the Health and Human Services Department.

The Alabama senator’s already difficult path to confirmation was made more contentious by Trump’s firing of acting Attorney General Sally Yates, who deemed the president’s order illegal and said she would not have Justice attorneys defend it.”

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As we have known for weeks, Jeff Sessions will soon be the Attorney General of the United States. What exactly does that mean for our justice system and particularly for the beleaguered and backlogged United States Immigration Courts which he will now control?

Among the most immediate questions:

Will he exempt the Immigration Courts from the Administration’s hiring freeze?

If so, what will he do with the many “pipeline candidates” for existing Immigration Judge vacancies who were “caught in limbo” when the hiring freeze went into effect?

Will he continue with the existing DOJ hiring process for the Immigration Judiciary, or will he establish his own recruitment and hiring system for Immigration Judges and BIA Judges.

We’ll soon find out. Stay tuned to immigrationcourtside.com for all the latest!

PWS

02/01/17

Read The Winter 2017 Edition Of “The Green Card” From The FBA — Includes My Article “Immigration Courts — Reclaiming the Vision” (P. 15) & “The Asylumist” Jason Dzubow’s Reprise Of The “Schmidt Interviews” (See “Immigration Rant,” P. 2)!

Green Card Winter 2017 Final

Here are some excerpts:

“Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. I have often spoken about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration Court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized Immigration Judges.”

Another one:

Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge

“Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (BIA) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.”

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Read the complete articles plus lots of other “great stuff” both practical and more philosophical at the above link.

And, for all of you “aspiring writers” out there, Green Card Editor and my good friend and former colleague from the U.S. Immigration Court In Arlington, VA, Hon. Lawrence Owen “Larry” Burman, and the Publications Director, Dr. Alicia Triche, are always looking for “new talent” and interesting articles. Instructions on how to submit manuscripts are on page one.

PWS

02/01/17

CBS News: “Overloaded U.S. immigration courts a ‘recipe for disaster'”

http://www.cbsnews.com/news/trump-us-immigration-courts-deportations/

AIMEE PICCHI/MONEYWATCH writes:

“President Donald Trump is taking what he portrays as a hard-nosed approach to undocumented immigrants, issuing an order this week to boost the number of U.S. border patrol agents and to build detention centers.

But what happens when a federal push to ramp up arrests and deportations hits a severely backlogged federal court system?

“It’s a recipe for a due process disaster,” said Omar Jadwat, an attorney and director of the Immigrant Rights Project at the ACLU. Already, he pointed out, there are “large, large numbers of caseloads” in immigration court, and Mr. Trump’s directives threaten to greatly increase the number of people caught in the system, he said.

Just how backlogged is the system for adjudicating deportations and related legal matters? America’s immigration courts are now handling a record-breaking level of cases, with more than 533,000 cases currently pending, according to Syracuse University’s TRAC, a data gathering site that tracks the federal government’s enforcement activities. That figure is more than double the number when Mr. Obama took office in 2009.

As a result, immigrants awaiting their day in court face an average wait time of 678 days, or close to two years.
Immigrant rights advocates say the backlog is likely to worsen, citing Mr. Trump’s order on Wednesday to hire 5,000 additional border patrol agents while also enacting a freeze on government hiring. Whether the U.S. Justice Department, which oversees the immigration courts, will be able to add judges given the hiring freeze isn’t clear.

A spokeswoman from the DOJ’s Executive Office for Immigration Review said the agency is awaiting “further guidance” regarding the hiring freeze from the Office of Management and Budget and the Office of Personnel Management. In the meantime, she said, the agency “will continue, without pause, to protect the nation with the available resources it has today.”

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There is video to go with the complete story at the link.

The situation is likely to get much worse in the U.S. Immigration Courts. Obviously, due process is not going to be a high priority for this Administration. And, while the Executive Orders can be read to give Attorney General Jeff Sessions authority to continue hiring Immigration Judges, filling the 75 or so currently vacant positions won’t begin to address the Immigration Courts’ workload problems.

Then, there are the questions of space and support staff. One of the reasons more vacancies haven’t been filled to date is that many Immigration Courts (for example, the U.S. Immigration Court in Arlington, VA) have simply run out of space for additional judges and staff.

The parent agency of the Immigration Courts, “EOIR,” is counting on being allowed to continue with expansion plans currently underway. But, even if Attorney General Sessions goes forward with those plans, that space won’t be ready until later in 2017, and that’s highly optimistic.

This does not seem like an Administration that will be willing to wait for the current lengthy highly bureaucratic hiring system to operate or for new Immigration Judges to be trained and “brought up to speed.” So various “gimmicks” to speed hiring, truncate training, and push the Administration’s “priority cases” — likely to be hundreds of thousands of additional cases — through the Immigration Courts and the Board of Immigration Appeals at breakneck speed.

Consequently, the whole “due process mess” eventually is likely to be thrown into the U.S. Courts of Appeals where “final orders of removal” are reviewed by Article III Judges with lifetime tenure, rather than by administrative judges appointed and supervised by the Attorney General.

PWS

01/28/17

Washington Post: Q&As On Fed Hiring Freeze — Many DOJ Employees (Including Immigration Courts) Might Be Exempt — Employees On Board On 01-22-17 NOT Affected!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/what-does-a-hiring-freeze-mean-for-the-federal-workforce/?hpid=hp_rhp-top-table-main_freeze-pp-1213pm:homepage/story&utm_term=.16a898e72b47

“Are all federal employees affected?

No. The wording of his memorandum exempts “military personnel” and says “the head of any executive department or agency may exempt from the hiring freeze any positions that it deems necessary to meet national security or public safety responsibilities.”

“Military personnel” generally refers to those in uniform, but if Trump also means civilian employees of the Defense Department, that alone would exclude about a third of the workforce.

Exempting public safety could wall off much of other large agencies such as the Justice Department and the Department of Homeland Security. If public safety includes public health workers, more would be excluded.

. . . .

How would a freeze be implemented?

Trump’s order says “no vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances.” The directors of the Office of Management and Budget and the Office of Personnel Management were told to “recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. This order shall expire upon implementation of the OMB plan.” The memorandum also “does not revoke any appointment to Federal service made prior to January 22, 2017.”

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Looks like understaffed Immigration Courts might be able to continue hiring. But, can’t tell for sure at this point. If somebody out there has more specific information relating to Immigration Court hiring, please let me know.

PWS

01/23/17

Washington Post: As Promised, President Trump Imposes Federal Hiring Freeze — Impact On Immigration Courts Unclear!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/trump-freezes-federal-hiring/?tid=hybrid_collaborative_1_na&utm_term=.ec045f3827e3

“President Trump issued an executive order Monday freezing federal hiring. The hiring freeze excludes national security employees.

A hiring freeze was included in the Trump presidential campaign’s “Contract with the American Voter.” It was the second of six measures “to clean up the corruption and special interest collusion in Washington, D.C.” and part of his “100-day action plan to Make America Great Again.”

The plan excludes the “military, public safety, and public health.”

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I imagine we will hear shortly from the DOJ/EOIR on how this affects hiring for the U.S. Immigration Courts. Stay tuned.

PWS

01/23/17

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts! The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

House GOP Ramps Up Assault On Our Government — Bill Would End Merit Civil Service And Reinstate Spoils System And Political Hackery — “Draining The Swamp?” — Heck No, The Alligators Are Crawling Out Of The Swamp And Threatening To Chew Up The Foundations Of Our Democracy!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/12/new-feds-could-be-fired-for-no-cause-at-all-under-planned-legislation/?hpid=hp_regional-hp-cards_rhp-card-fedgov:homepage/card&utm_term=.ceb404b7559d

Here’s what Post Fed columnist Joe Davidson had to say about Rep. Todd Rokita’s (R-IN) bill to stifle the Federal workforce:

“Rokita’s bill makes the meaning of at-will status clear: “Such an employee may be removed or suspended, without notice or right to appeal, from service by the head of the agency at which such employee is employed for good cause, bad cause, or no cause at all.”

Think about that.

Political appointees could fire civil servants for “no cause at all.”

That’s dangerous.

Civil service procedures can be long and frustrating, but they are designed to guard against arbitrary actions. Federal law governing the workforce permits disciplinary actions for “such cause as will promote the efficiency of the service.” At odds with the “at-will” power Rokita advocates, among the government’s long-standing merit system principles is one designed to “protect employees against favoritism, political coercion and arbitrary action and prohibit abuse of authority.”

The protections are not just there to protect federal employees. In fact, the most important beneficiaries of these protections are the nation’s citizens, taxpayers and residents. Civil service protections are designed to protect everyone against favoritism by political officials and politicized agencies. While political appointees carry out policies designed by elected leaders, federal agencies are charged with serving everyone without regard to their political affiliations. Allowing political officials to fire feds for no reason seriously damages the principle of a nonpartisan civil service.

Rokita introduced the legislation last year and said he plans to offer substantially the same measure soon.

Rep. Elijah E. Cummings (D-Md.), the top Democrat on the Oversight Committee, called the bill a “shortsighted, blatant attempt to undermine a merit-based workforce that would … usher in a return to the spoils system and mean the end of a professional, non-partisan federal workforce dedicated to serving everyone, not just political allies.”

Rokita argued that at-will employment is how the rest of America works. But the federal government is not just another enterprise. The government is a monopoly providing services, many involving life and death, to and funded by all Americans. They cannot take their business elsewhere if treated badly because they are blue when the red team is in power — or vice versa.”

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So, while middle class Feds works hard every day to keep Social Security, health care, law enforcement, justice, transportation safety, financial accountability, recreation, education, etc. flowing out to the public at large, the guys who are supposed to be in charge of the “big picture” spend their time dissing, undermining, attacking and trying to create a system where tax dollars can be handed out to their cronies in a non-merit-based spoils system.

I remember when I was growing up, Federal Government employment was looked at as a model, with merit based selection and career advancement, decent, predictable benefits, reasonable, but by no means extravagant, pay, good working conditions, and overall teamwork between civil servants and their political leaders that should set an example for state and local governments and other American employers to emulate. Today’s GOP advocates a “race to the bottom” approach whereby the Feds should adopt the least attractive practices of private industry to drive the best people into the private sector, thereby leaving the remaining jobs for GOP politicos to fill with their chosen hacks. And this is “progress?”

PWS

01/13/17

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

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

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

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

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

By Paul Wickham Schmidt

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

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

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

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

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

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

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

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

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

PWS

01/10/17

My Upcoming Interview With David Noriega On Vice News/HBO

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

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

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

PWS

01/09/17

Post Editorial Decries GOP’s Unprovoked Attack On Civil Service Merit System!

https://www.washingtonpost.com/opinions/a-resurrected-house-rule-threatens-open-season-on-the-civil-service/2017/01/06/89881132-d448-11e6-a783-cd3fa950f2fd_story.html?utm_term=.a8262ed56f2c

“The move follows efforts by President-elect Donald Trump’s transition team to identify employees in the Energy Department who work on climate change and jobs in the State Department devoted to gay and women’s rights. The combination of events underscores the inherent danger. Competence and performance — not adherence to ideology — should be the basis for federal employment. That is why the civil service replaced the system of political spoils.

If members of Congress don’t like particular programs — Mr. Griffith is apparently peeved by a federal program that pays for the care of wild horses on federal land in the West — they can choose not to appropriate funds to implement them. If they want to change civil-service rules to target poor performance or reward good work, they have that power too. If they are incapable of properly exercising these constitutional authorities, maybe it is their salaries that should be slashed to $1.”

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In the previous blog posting, http://wp.me/p8eeJm-5v Jason Dzubow (“The Asylumist”) noted the falling morale and apprehension among civil servants involved in immigration enforcement and adjudication. He urged them to to remain at their posts and continue working for the ideals of fair and competent administration of some very difficult laws and overall “good government.”

But, as noted here and in my previous blog, http://wp.me/p8eeJm-4O these could be challenging times for the dedicated public servants whose hard work keeps our immigration system afloat and our Government functioning, in light of the unbridled hostility toward our own Government shown by the GOP at both the Congressional and Administration levels.

I agree with Jason. I hope that the numerous great folks that I came in contact with during my many years of public service “hang in there” and continue to strive to “do the right thing” every day. But, that’s easy for me to say from my current vantage point as a retiree. It’s much harder for those who are actually trying to get the job done with neither support nor appreciation from those who should be most grateful.

As an Immigration Judge at both the trial and appellate levels, I was often struck with how the fundamental difference between the countries people were fleeing and the United States was honest, reliable government committed to the common good. In most repressive countries, the government at all levels was staffed by political cronies or supporters of the ruler who viewed their government positions as a license to extort, steal, abuse, and even sometimes kill, those “on the outs” with the powers the be. Many applicants were skeptical of all governments, including our own. The concept that government officials would treat them fairly and listen to their claims with an open mind, rather than just seeking to carry out a political or personal agenda, simply wasn’t in their sphere of experience.

The Federal Civil Service isn’t perfect. It can and should be improved. But, it remains one of the “crown jewels” of our democratic republic. The hostility of some of those who comprise the political arms of our government to the concept and operation of a merit-based, nonpartisan, nonpolitical Civil Service should be of deep concern to all of us.

PWS

01/07/16

The Asylumist (Jason Dzubow) Urges Public Servants In Immigration Enforcement And Adjudication To “Stay” — “You Are Exactly The Type of Person We Need!”

In his “Open Letter” to Feds, Dzubow writes:

“In speaking to some DOJ and DHS attorneys and officers since the recent election, I have seen a certain level of demoralization. Some people have expressed to me their desire to leave government service. While these individuals respect and follow the law–even when the results are harsh–they are not ideological. They do not hate immigrants (or non-white people, or Muslims) and they do not want to enable or contribute to a system that they fear will become overtly hostile to immigrants that President Trump considers undesirable. I suppose if I have one word of advice for such people, it is this: Stay.

If you are a government attorney or officer and you are thinking of leaving because you fear an overtly ideological Administration, you are exactly the type of person that we need to stay. As has often been the case in recent decades, an honest, competent bureaucracy is the bulwark against our sometimes extremist politics.

It’s likely that if you are a government employee who is sympathetic to non-citizens, your job will get more difficult, the atmosphere may become more hostile. It will be harder to “do the right thing” as you see it. Opportunities for promotions may become more limited. Nevertheless, I urge you to stay. We need you to help uphold the law and ensure due process for non-citizens and their families. To a large extent, our immigration system is as good or as bad as the people who administer the law. We need the good ones to stay.”

http://www.asylumist.com/2016/12/22/an-open-letter-to-my-friends-at-dhs-and-doj/

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I blogged yesterday about the outrageous attack on the Civil Service System and career public servants by the House GOP:

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

As noted by Jason, one of those urging such cowardly attacks on the fabric of our Government and those who keep it running is Newt Gingrich. Interestingly, while in Congress, Gingrich was censored by his colleagues for ethics abuses while on the public payroll.

PWS

01/06/17

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