Backlogs – Page 45 – immigrationcourtside.com

CRUEL, YET REALLY STUPID: TRUMP’S “REMAIN IN MEXICO POLICY” DENIES DUE PROCESS WHILE CREATING COURT CHAOS — Enfeebled Judges Fume As “Aimless Docket Reshuffling” Bloats Backlogs! — Article IIIs Complicit! — “The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=e1be401d-5763-4c8b-abee-151232bd287e

Kate Morrissey reports in the LA Times:

SAN DIEGO — The San Diego immigration court has been overwhelmed by the number of cases judges are hearing under a Trump administration program that returns asylum seekers to Mexico while they wait for hearings in the U.S.

Normally, asylum seekers coming to the California border would be distributed to immigration courts across the country, either because they would be held somewhere in the federal government’s national immigration detention system or because they would be released to reunite with family and friends already in the U.S.

Now, the increasing number of people picked for the administration’s Migrant Protection Protocols, known widely as the Remain in Mexico program, across the California border are all being sent to immigration court in downtown San Diego.

“Other than wallow through it, I don’t know what we can do,” said Immigration Judge Lee O’Connor shortly before walking out of his courtroom at 6:21 p.m. one evening last week after hearing a string of MPP cases. Court staff, including security, had left the building long before.

Immigration judges are already working under performance quotas set by the Trump administration to reduce the immigration court backlog, which has grown nationally to nearly 900,000 cases, according to data from the Transactional Record Access Clearinghouse of Syracuse University.

The San Diego court has more than 5,700 cases pending, up from 4,692 cases in fiscal 2018, a 22.4% increase. Nationally, the backlog has grown about 16.2% in fiscal 2019.

“This is a reflection of the constant doublespeak we’ve been highlighting. The agency has internally conflicting priorities,” said Ashley Tabaddor, speaking in her capacity as head of the National Assn. of Immigration Judges. “It creates chaos.”

On a given day, three of San Diego’s seven judges generally have afternoons full of MPP cases. On a recent Tuesday afternoon, 82 people were scheduled to appear before three judges, 28 of those before O’Connor.

“The judges have no control in terms of how many cases are being scheduled,” Tabaddor said.

Border officials who initially receive migrants either requesting protection at a port of entry or after they’re apprehended crossing illegally are responsible for scheduling the first court appearance for returnees.

Customs and Border Protection did not respond to a request for comment. The Department of Homeland Security was unable to respond to questions in time for publication.

Several of the judges assigned to hear cases in San Diego have pushed back on the government for a laundry list of issues that could be violations of the government’s due process responsibilities under immigration law.

Tabaddor said she’s heard a number of concerns from her union members who are trying to make sure “all of the T’s are crossed and all of the i’s are dotted” in implementation of the new program. “That’s what the oath of office is,” Tabaddor said. “You’re supposed to make sure all the rules are followed.”

One that has come up over and over again is the address put down initially on each asylum seeker’s case documents by border officials. Along the California border, Customs and Border Protection and Border Patrol have written some version of “Domicilio conocido,” or “known address.”

Some have “Tijuana, Baja California, Mexico.” Others simply say “Baja California” without the city or the country noted.

Having an accurate address on file is key to showing that immigrants were given proper notice of their court hearings. That proof of notice is a crucial part of a judge’s decision to proceed “in absentia” and order a person deported if he or she doesn’t show up for a hearing.

“This whole program, I don’t understand it,” said Immigration Judge Jesús Clemente on his first day of hearing MPP cases. “How are we ever going to tell this person that he has a hearing?”

Similarly, when an government attorney suggested that it was the asylum seeker’s responsibility to provide an accurate address, Immigration Judge Scott Simpson responded with incredulity. “Are you saying the respondent provided this address?” he asked, referring to the asylum seeker. “Are you saying every respondent in the MPP program provided this address?”

“I can’t speak to that,” the attorney representing ICE responded. “In my experience, the address the respondent provides is what is put down.”

“That’s how it usually works,” Simpson replied. “But I’m not convinced that’s what’s happening now.”

When asked about the address issue recently, San Ysidro Port of Entry Director Sidney Aki said that migrants don’t often know where they will be staying when they’re first returned.

To prevent any miscommunication, Aki said, they’re told to return to the port of entry at a particular date and time.

Normally, if a judge believes that the government violated an asylum seeker’s due process rights, the judge can terminate immigration proceedings against that person, said attorney Lindsay Toczylowski, executive director of Immigrant Defenders Law Center. Then the asylum seeker can apply for protection outside of immigration court in a process that is less adversarial.

For returnees who are ultimately hoping for asylum in the U.S., termination won’t help them because they’ll be returned to Mexico with no access to the U.S. asylum system, she said.

“It essentially removes their ability to vindicate their due process rights,” Toczylowski said.

Among other issues, the dates on instructions given to returnees that explain when to come back to the San Ysidro Port of Entry to be taken to court don’t always match the dates on their hearing notices. Or, the government fails to file the preliminary paperwork in the case and the immigration court doesn’t have a hearing scheduled for the person when he or she shows up.

“I’m sure you’re frustrated,” Simpson said to a man whose paperwork had not properly been filed by the government, resulting in a delay in the start of his case. “I share your frustration.”

Asylum cases typically have several preliminary hearings, known as “master calendar hearings,” before the “merits hearing,” where evidence is presented for the judge to make a decision on the person’s claim. During those master calendar hearings, asylum seekers are given time to look for attorneys, are told their rights in immigration court, and are given applications to fill out and submit.

Juan, a doctor who fled Honduras after facing threats for his participation in political protest, filed his asylum application in mid-May. His merits hearing was scheduled for November.

Where to live and how to sustain themselves in Tijuana is becoming a larger and larger issue as more asylum seekers are returned. Despite its promises at the program’s outset, Mexico has not given many of the returnees permission to work while they wait.

Tijuana’s migrant shelters are already at or near capacity, and most of the people staying in them are not returnees from the program.

One returnee who had become homeless and tried crossing illegally only to be returned again to Tijuana said he was planning on going back to his country in the coming days. It would be better to die there, he said, than to continue living as he’s been living in Tijuana.

Juan is one of the lucky ones. He is staying at a shelter near the border. Still, he’s worried about the long wait ahead.

“The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico,” he said.

Morrissey writes for the San Diego Union-Tribune.

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The Ninth Circuit had an opportunity to put at least a temporary halt to this blatant denial of the statutory right to counsel and the constitutional right to adequate notice and Due Process. They “swallowed the whistle.” Eventually, these feckless and complicit Article III courts will find their own dockets overwhelmed with the results of their inaction in the face of a Due Process, operational, and human rights disaster of gargantuan proportions in the U.S. Immigration Courts as mal-administered by the DOJ.

Of course, the real culprit is Congress, which has failed to act to require an independent, constitutional U.S. Immigration Court. But, the word “feckless” doesn’t begin to describe a body that under Mitch McConnell has intentionally ceded its constitutional power to govern and oversee in the overall public interest to an unqualified, scofflaw President who respects neither democratic institutions nor the rule of law.

PWS

06-06-19

O’ROURKE’S IMMIGRATION PLAN FEATURES INDEPENDENT ARTICLE I IMMIGRATION COURT — Every Serious Democratic Candidate Needs To Include This “Must Do” Priority!

Beto_O_Rourke_Immigration_Plan

IN OUR OWN IMAGE
Beto O’Rourke’s Plan for Rebuilding Our Immigration and Naturalization System To Make It Work Better for Our Families, Our Communities, and Our Economy
Above all else, immigration is about people – not just those who have recently arrived or those yet to come, but the kind of people we choose to be. Since the Founding, the compact we made as a nation was to welcome the oppressed, the persecuted, and the hopeful from all over the world because we recognize that immigrants enrich every aspect of our society with their determination and genius. Each successive generation of Americans has included immigrants, refugees, and asylum seekers, strengthening this nation that we share.
The current administration has chosen to defy this American aspiration, drafted into our Declaration of Independence, welded into the welcome of our Statue of Liberty, and secured by the sacrifices of countless generations. Instead, the current administration is pursuing cruel and cynical policies that aim to sow needless chaos and confusion at our borders. It is manufacturing crises in our communities. And it is seeking to turn us against each other. When this is done in our name, with our tax dollars, and to our neighbors, we not only undermine our laws, hold back our economy, and damage our security – we risk losing ourselves.
But at this moment of peril, we have a chance not only to reverse course but to advance a new vision of immigration that more fully reflects our values. As a fourth-generation El Pasoan, Beto uniquely recognizes the urgency of fixing our broken immigration and naturalization system. Rooted in his experience serving the largest binational community in the Western Hemisphere – one that draws its strength and prosperity from its rich heritage of welcoming immigrants – Beto is proposing a new path forward to ensure we honor our laws, live up to our values, and once again harness the power of a new generation of immigration toward our shared prosperity.
Beto’s plan, which would represent the most sweeping rewrite of our nation’s immigration and naturalization laws in a generation, is built on three key pillars:
1. On day one of his presidency, Beto will use executive authority to stop the inhumane treatment of children, reunite families that have been separated, reform our asylum system, rescind the travel bans, and remove the fear of deportation for Dreamers and beneficiaries of programs like TPS.
2. Beto will also immediately engage with Congress to enact legislation – focused on the key role families and communities play – that will allow America to fully harness the power of economic growth and opportunity that both immigration and naturalization will bring to our country’s future.
3. Finally, Beto’s plan would strengthen our partnership with our neighbors in the Western Hemisphere. We need to refocus on supporting democracy and human rights and invest in reducing violence because the only path to regional security runs through a more democratic and prosperous Latin America.
I. ENDING THE CRUEL AND CYNICAL POLICIES THAT CREATE CHAOS AT OUR BORDERS AND IN OUR COMMUNITIES ON DAY ONE

The current administration’s cruel and cynical policies are sowing needless chaos and confusion at our borders and in our communities. On day one of his presidency, Beto will take immediate executive action to end these practices and replace them with policies that conform to our laws and values, restore order and process to our asylum and immigration systems, and refocus our tax dollars on smart security. Those executive actions will:
● Reform the asylum system and reunite families. The current asylum system is ineffective, inefficient, illegal, and immoral. Those traveling vast distances to escape extreme violence and crushing poverty are being met by a militarized cruelty and manufactured chaos that separates families, detains children, and deliberately extends the backlog of those who require processing. We must change both the culture and processes for handling asylum claims.
An O’Rourke administration will ensure lawful and humane conditions at U.S. Customs and Border Protection (CBP) facilities, including access to medical treatment, mental health care, social workers, and translators, and restore orderly and prompt processing of people seeking refuge under our nation’s asylum laws. As president, Beto will:
o Rescind the current administration’s executive orders that seek to maximize detention and deportation, including former Attorney General Sessions’ radical re- interpretation of asylum law that seeks to deny protection to women and children fleeing domestic violence and escaping from deadly gangs.
o Mandate an end to family separations at the border and illegal policies like “metering” and “Remain in Mexico.”
o Issue an executive order to require detention only for those with criminal backgrounds representing a danger to our communities and eliminate all funding for private, for-profit prison operators whose incentive is profit, not security.
o Ensure that people have the tools to navigate our immigration court system by scaling up community-based programs and family case management, which is nearly one-tenth the cost of detention and ensures that people attend their courts hearing and that they know what is expected of them.
o ReinstatetheCentralAmericanMinorsprogram–allowingchildrenwithparents in the U.S. to apply for refugee status from their home countries – and other regional refugee resettlement efforts, working with the international community to process cases in the region and commit to resettling in partner countries.
o Take immediate steps to upgrade and increase staffing in the asylum system, streamline how cases move through the process, and provide timely and fair asylum decisions, while laying the foundation for a more fundamental reform to the immigration court system that restores due process and ensures equal access to justice, including by:

▪ Increasing court staff, clerks, interpreters, and judges;
▪ Making the courts independent under Article I, rather than administered
by the U.S. Department of Justice;
▪ Ending policies that prevent judges from managing their dockets in the
most effective way;
▪ Expanding the Legal Orientation Program (LOP) to ensure that everyone
knows how to navigate our immigration system;
▪ Deploying up to 2,000 lawyers to the border and funding a robust right to
counsel; and
▪ Developing approaches to resolve asylum cases outside of the court system,
such as by allowing USCIS Asylum Officers to fully adjudicate cases when conducting Credible Fear Interviews to prevent referring more cases into the backlogged courts.
o Personally lead a public-private initiative to bring humanitarian resources to the border.
● Rescind the discriminatory travel bans, which defy our nation’s Constitution and values.
● Immediately remove the fear of deportation for Dreamers and their parents and Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) beneficiaries, and begin work towards a permanent legislative solution.
● Refocus on smart security. The current administration is distracting CBP and other law enforcement personnel from focusing on actual threats and undermining their efficacy by pulling resources away from them – all in pursuit of a wall that we do not need, does not work, and will not make us safer. As President, Beto will:
o Immediatelyhaltworkontheborderwall–andhisfirstbudget,andeverybudget, will include zero dollars for this unnecessary wall;
o Immediatelybooststaffingtoexpandinspections,reducewaittimes,andincrease our capacity to detect illicit drugs – for instance by pursuing a targeted two-prong strategy that focuses on fentanyl shipments coming through our ports and our mail system – and other contraband, as well as modernizing our ports; and
o Immediately prioritize cracking down on smugglers and traffickers who exploit children and families by working with our regional partners.

IN OUR OWN IMAGE
The following are first-hand testimonials from immigrants in El Paso and across America
Daisy, Dreamer
El Paso, TX
“I came to this country when I was under two years old and have been here for 21 years. I have two younger brothers – one is a United States citizen and one is DACA, like me. I’ve been here longer than I can remember, but because of my status I couldn’t qualify for federal loans to help pay for community college. So I worked two jobs – one full-time job and one part- time job at the same time as taking classes year-round to get my associate’s degree, and now I’m enrolled in the University of Texas, El Paso, where I’m studying computer science and want to go into cybersecurity. After I graduate, I’m thinking about maybe trying to support the US military in cybersecurity or networking – but I can’t work on a base if I don’t have legal immigration status.
“All my friends and memories are here in America. Everything I’ve worked for and contributed to is here and I want to continue building my life and career in the only place I’ve known to be home.”
David, Dreamer
El Paso, TX
“I arrived in the United States when I was 13 years old with my mother after we lost our home during Hurricane Wilma. Since I’ve come here, I’ve always pushed myself to be the best I can be. I’ve worked hard in school, pursued my passion in math and science, and now I’m studying computer science at UTEP while also working at a solar company. When I graduate, I want to use my degree to better this country and society.
Some of modern society’s most important inventions are the result of immigrants – such as Google and Tesla. This innovation only happened because people came to this country and were given a chance. America should embrace the investments, benefits and diversity that immigrants bring, because we can help this country reach its greatest potential.”
II. STRENGTHENING OUR FAMILIES, COMMUNITIES, AND ECONOMY BY REWRITING OUR IMMIGRATION LAWS IN OUR OWN IMAGE
As President, Beto will push to rewrite our nation’s immigration and naturalization laws in our own image. These laws have not been meaningfully modernized in decades, despite the efforts of multiple administrations. But we have the chance to chart a new course that more fully vindicates the promise of this nation of immigrants. Beto will work with Congress to achieve that vision. He will reunite families and ensure they have a chance to contribute more to our economy and our communities – and pursue the American Dream. He will put workers and employers on a level playing field to, together, tap into the opportunity immigration presents for our economic growth and shared prosperity. And he will do that while boosting the security and functionality of our borders.
This is not just right but also essential to our shared prosperity. Immigrants from every corner of the world – those who came here on student visas and those seeking refuge from persecution – have been a key driver of our economic growth. They have been responsible for nearly one-third of all new small business, one-fifth of all Fortune 500 companies. And achieving immigration reform will be critical to unlocking our future success – creating at least 3 million jobs over the next decade, adding $2 billion to state and local tax revenues each year, and cutting the deficit by at least $1 trillion over the next 20 years.
Naturalization, too, promises economic gains. A recent study of 21 U.S. cities found that if all eligible immigrant residents were to naturalize, incomes would increase by $5.7 billion,

homeownership would rise by over 45,000, and tax revenues would grow $2 billion. The same study showed GDP would grow by $37 to 52 billion per year if half of those eligible nationwide naturalized.
In his first hundred days, Beto will put the full weight of the presidency behind passing legislation that:
● Creates an earned pathway to citizenship for 11 million undocumented people that is more efficient than previous proposals and includes an immediate path for Dreamers and beneficiaries of programs like the Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) programs.
● Strengthens our families, communities, and economy by prioritizing family unity – a hallmark of our best traditions – through provisions that:
o Reuniteimmigrantfamiliesseparatedbylengthyvisabacklogs;
o Revisepreferencecategoriesandcapstoprioritizefamilyunity;and o Removebarstore-entryandstatusadjustmenttosupportfamilies.
● Establishes a new, first-of-its-kind community-based visa category. Beto’s proposal will create a brand new category whereby communities and congregations can welcome refugees through community sponsorship of visas. This program will supplement the U.S. Refugee Admissions Program, which will be rebuilt and restored to align with America’s tradition of welcoming vulnerable refugees from around the world.
● Increase the visa caps so that we match our economic opportunities and needs – for work, education, investment, and innovation – to the number of people we allow into this country. This also means legislation that will:
o Ensure that industries that depend on immigrant labor have access to a program that allows workers to legally come here and legally return to their home country with appropriate labor and mobility protections;
o Address the green-card backlog and provide opportunities for those awaiting resolution to work and contribute, while immediately recapturing the over 300,000 green cards that have gone unused due to bureaucratic delays to support our high-growth industries of the future;
o Promote STEM education by granting foreign-born students more flexibility to stay in the U.S. and gain employment after graduating; and
o Allowforeign-bornentrepreneursandU.S.patentholdersthechancetostayinthe United States to grow their business, create jobs and raise families that will go on to enrich our country.

● Make naturalization easier for the nearly 9 million immigrants who are currently eligible for citizenship. If we are to reestablish our reputation as a nation that welcomes immigrants, we must make it easier for those already here to become full-fledged citizens. This means pursuing legislation that:
o Makesnaturalizationfreeforallwhomeetthelegalrequirementsforcitizenship;
o Eliminatesapplicationbacklogs;
o Reforms the application process so that individuals are mailed a pre-filled application form as soon as they meet the legal requirements for citizenship;
o Increaseslegalservicesfundingforthosewhoneedit;and
o Establishesequaltreatmentofallcitizens–naturalizedandnative-born–rejecting the current administration’s effort to create new barriers to naturalization and stoke fears around de-naturalization.
● Bolster security and functionality of the border where trade and travel occur. Beto will draw on his lived experience at the border to push for legislation that actually supports our law enforcement and our border communities in advancing the nation’s security and protection from all threats. This includes three steps:
o Increasing Personnel: Immediately stop the smuggling of drugs and prevent human trafficking across the border by hiring, training, and assigning additional CBP personnel at land border crossings;
o Strengthening Infrastructure: Investing in smart, long-term border security by improving existing ports of entry and constructing new ones, investing in evidence-based, cost-effective technology, and supporting federal grant programs that provide resources to both state and local law enforcement and our border communities; and
o AddressingFailures:Ensuringthatweremainanationoflawsbyaddressingvisa overstays through better tracking of and notification to visa holders and fully harmonizing our entry-exit systems with Mexico and Canada.
● Ensure transparency and accountability in law enforcement, including ICE and CBP. Beto will also continue to champion and build upon his previous proposals to:
o CreateanindependentBorderOversightCommission,anOmbudsman,andBorder Community Liaison office;
o Create a uniform process for tracking and preventing migrant deaths along the border; and

o Increase accountability from ICE and CBP personnel through improved training and continued education courses.
IN OUR OWN IMAGE
The following are first-hand testimonials from immigrants in El Paso and across America
Jose Ochoa, business owner
Santa Teresa, NM
“I was born and raised in Mexico and studied engineering. In 2003, I moved to Juarez and worked for multiple global companies in their engineering and packaging operations, but after three years, I knew I wanted to start my own company. One of my colleagues and I teamed up and we opened our own businesses – one in Juarez and one in El Paso – embracing the binational relationship and trade partnership between the United States and Mexico. Today, that company employs nine people in El Paso, and I recently started my third business in America: a consumer electronics corporation established in New Mexico with an e- commerce presence and a physical store in Texas.
“In 2017, our El Paso business, Global Containers & Custom Packaging, was named Exporter of the Year by the El Paso Small Business Administration. Small businesses are the top generators of our economy – we want to generate value, impact our communities and keep employing more people. And if I can help other entrepreneurs and immigrants to be successful here in America – that’s what makes me happy.”
Jose David Burgos, MD, doctor and business owner
El Paso, TX
“I was born in Venezuela as the son of Colombian immigrants. I studied medicine in Venezuela, but because of the political climate there, I came to the United States in 2005, enrolled in school and started preparing for my medical boards while doing research at the University of South Florida. I then had the chance to do my residency at Texas Tech, where I also worked as a professor of internal medicine and after that I started working at the University Medical Center in El Paso. Now, I serve as Medical Director at UMC and have opened two medical clinics in the area, including an urgent care facility. My family also recently opened a restaurant in El Paso.
“Both my wife and I are immigrants and we both had the opportunity to become American citizens. It was a lengthy and painful process, but I am grateful that we have been able to make a positive impact in our community and bring positive change to the area. I am living proof the American Dream is alive, and now I am able to support and encourage other hardworking physicians who are looking for the same chance.”
III. RESTORING OUR STANDING AND ENSURING REGIONAL SECURITY BY BEING A PARTNER FOR PROSPERITY AND SECURITY IN LATIN AMERICA
Consistent with this broad vision, Beto’s plan strengthens our partnership with our neighbors throughout the Western Hemisphere and will be implemented alongside partners in the Northern Triangle and across the region. His foreign policy will increase our engagement within the hemisphere, elevate the importance of Latin America, refocus on supporting democracy and human rights, end our failed war on drugs, and invest in reducing violence and combating climate change, because the only path to regional security runs through a more democratic and prosperous Latin America.
● Join with the people of the Northern Triangle to fight violence and poverty and bolster our shared security and prosperity. Beto will bring a whole of government approach to our investment in the Northern Triangle, recognizing that what we have done in the past is not enough. We must convene our regional partners to do more, faster, if we are serious about reversing the instability that drives forced migration. This means:

o ConveninganewandimprovedPartnershipforProsperityandSecuritybycalling upon our allies and friends across the Americas to form a regional alliance dedicated to creating stability and economic prosperity across the continent, beginning in the most precarious countries;
o Investing $5 billion in the region primarily through non-governmental organizations, community groups (such as Municipal Crime Prevention Committees) and congregations, and public-private partnerships, while galvanizing new financial support from Canada, Mexico, and other international partners, and transforming the development approach that these resources advance, by
▪ Supporting community-based violence prevention strategies and encouraging an end to militarized public security and the global war on drugs – which has become a war on people and fails to recognize the real threat of addiction;
▪ Promoting democratic infrastructure, labor rights, civil rights, and human rights;
▪ Supporting the growth of small-scale farming and access to markets;
▪ Providing agricultural technical support to increase adaptation to climate
change and improve the use of natural resources;
▪ Elevating job, training, and educational opportunities for youth;
▪ Strengthening strategies to address the specific needs of women and girls;
▪ Improving access to health care, clean air, and clean water; and
▪ Supporting adoption of crop insurance and catastrophic insurance, especially as a powerful tool in the face of a changing climate.
● Address systematic impunity, corruption, and weak institutions. Beto will also be firm with the economic and governing elites of the Northern Triangle, who must do their part. For too long these elites have benefited from the status quo. Real change will require their full engagement and, as President, Beto will demand it. That means if they want access to the United States – to do business, to vacation, to send their kids to college – they must commit to ending corruption and self-dealing. They must pay their taxes and invest in their broader communities. They must hold their elected officials accountable.
● Strengthen Mexico and Latin America’s capacity to contribute to regional security, by supporting the United Nations’ Refugee Agency’s (UNHCR) work and the development of strong asylum and refugee protection systems in Mexico and across the region, to manage migration flows from the Northern Triangle, specifically by:

o WorkingwithUNHCRtoexpandthecapacityofMexico’srefugeesystemandto collaborate with Mexico on asylum seekers who are both traveling to and through Mexico; and
o Launching a regional resettlement initiative, including building a safe and comprehensive repatriation and reintegration program.
IN OUR OWN IMAGE
The following are first-hand testimonials from immigrants in El Paso and across America
Evelyn, survivor of human trafficking
Silver Spring, MD
“I came to this country when I was 9 years old. I had no idea that I didn’t come here legally, and I was forced into modern-day slavery for the next seven years. With the help a local church and law enforcement, I was able to escape the system I was forced into, get a visa, and I eventually became a naturalized citizen. I got my GED, went to community college, saved money, and in 2016 received my Bachelor’s Degree. Becoming a naturalized citizen enabled me to do more work helping survivors of human trafficking find jobs and start new lives for themselves. It also enabled me to travel across the United States and abroad to educate people about human trafficking and how many people who come to this country and don’t have legal status are victims of violence or horrible situations often without anywhere to turn.”
Carlos G. Maldonado, J.D., immigration lawyer
El Paso, TX
“I came to the United States from Quito, Ecuador when I was 16 without knowing a word of English. I had always wanted to become either a doctor or a lawyer, but after navigating the difficult and complicated immigration system myself, I knew I wanted to go into law to help others have the chance to start and build their lives in America too.
“It took me almost 18 years to finally be able to become a United States citizen. For the first 13 years I was here – even though I had finished law school and was here legally – I never once left the country because I feared I wouldn’t be able to return or that it would slow down my immigration process. I finally became a U.S. citizen in 2018 – and that day was the best day of my life. It was honestly a dream come true. I was relieved, happy and thankful all at the same time. I am so honored today to be able to say that I am an American, and I’m honored that through my work every day I am able to help others navigate the immigration process and have a chance at the American Dream too.”

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Immigration cannot be successfully addressed or reformed without correcting the current unconstitutional and totally dysfunctional Immigration Court system and replacing it with an independent Article I Immigration Court that complies with our Constitution and guarantees constitutional due process as well as efficient, professional, de-politicized judicial and docket administration.

As our current failed Immigration Court system proves every day, all of our legal and constitutional rights are meaningless without a fair, independent, and impartial forum in which to vindicate them. Injustice to one is injustice to all!

PWS

06-01-19

“FALSE COURTS” OPERATING UNDER UNETHICAL & INAPPROPRIATE EXECUTIVE CONTROL KEY TO GULAG’S PURPOSE OF EXTINGUISHING DUE PROCESS THROUGH DURESS, MISTREATMENT, & DEHUMANIZATION — Would A “Real” Court System Participate In Such a Charade? — “America’s immigration system takes the myth of due process and turns it on its head.“

https://www.nytimes.com/2019/05/31/opinion/power-asylum-seekers.html?smid=nytcore-ios-share

Former Border Patrol Agent and author Francisco Cantu writes in the NY Times:

Seeking Refuge, Legally, and Finding Prison

Power is condemning lawful asylum seekers to a system designed for criminals.

By Francisco Cantú

Mr. Cantú is a former Border Patrol agent and an author.

May 31, 2019

For more than seven months, Ysabel has been incarcerated without bond at an immigrant detention center in southern Arizona, part of a vast network of for-profit internment facilities administered by private companies under contract with the Department of Homeland Security.

I visit Ysabel (who has asked not to be identified by her real name for her protection) every two weeks as a volunteer with the Kino Border Initiative, one of ahandful of migrant advocacy groups running desperately needed visitation programs in Arizona, including Mariposas Sin Fronteras and Transcend. As volunteers, our primary role is to provide moral support; facilitate communication with family members and legal service providers; and serve as a sounding board for frustration, confusion and, often, raw despair.

Ysabel and the other asylum seekers we visit often ask for simple forms of support, such as small deposits into their commissary accounts to let them call relatives or purchase overpriced goods like dry ramen, tampons, shampoo or headphones for watching telenovelas. They often ask us to send them books in Spanish — one of the few things that they are permitted to receive through the mail without clearance from a property officer. Large-print Bibles are the most popular, along with books of song and prayer, bilingual dictionaries and English course books, romance novels, and other books that provide ways to pass the time — word puzzle collections, coloring books, books for learning how to draw and instruction manuals for making origami figurines.

Ysabel arrived at the United States border last October after leaving her home and two children in eastern Venezuela. The region she fled was plagued by disorder long before the more widely reported upheavals of recent months, suffering frequent power outages, widespread violence and unrest, and severe shortages of food, water and medication. In the years leading up to her flight from the country, Ysabel told me that she had been kidnapped, robbed at gunpoint multiple times and shot at during an attempted carjacking.

Like millions of her compatriots, Ysabel became disillusioned after her government failed to provide even the most basic security and public services. She joined a local opposition movement, and after participating in several antigovernment demonstrations, she was marked as an enemy of the governing regime. After her house was raided by Venezuelan intelligence forces, she decided to leave for good.

To get to the United States, Ysabel went to Caracas before embarking on nearly three weeks of circuitous travel via airplane, car, bus and taxi. She journeyed through Panama City, Bogotá, Cancún, Mexico City and Mexicali, before finally arriving in San Luis Rio Colorado, a Mexican border town adjacent to Yuma, Ariz., where she presented herself to be considered for asylum at the designated port of entry.

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CreditMaddie McGarvey for The New York Times

Ysabel, it should be noted, has now been detained for more than half a year despite following American immigration and asylum laws to the letter. When interviewed by officials from the Department of Homeland Security, she was quickly found to have a legitimate fear of returning to Venezuela. Nevertheless, like tens of thousands of asylum seekers like her, she has been made to endure the suffocating precarity of our criminal justice system despite never having committed, nor ever being accused of, a crime.

THE BIG IDEAS: WHAT IS POWER?

A special section of The Times’s philosophy series, The Stone, in which more than a dozen notable thinkers and writers answer the question, “What is power?” The entire series can be read here.

Instead of appearing in criminal court, those who seek asylum in the United States undergo civil proceedings. Public defenders are not provided in civil court, so most migrants and asylum seekers receive no legal counsel as they fight their immigration cases, instead relying entirely on pro-bono legal services like The Florence Project, Arizona’s only nonprofit dedicated to representing migrants. According to a 2016 report by the American Immigration Council, only 14 percent of immigrant detainees are represented by an attorney — a number that has likely fallen with recent increases in asylum seekers arriving at the border. The overwhelming majority of those without lawyers — almost 91 percent — have their cases rejected

America’s immigration system takes the myth of due process and turns it on its head. Instead of a presumption of innocence, migrants face the assumption of inadmissibility. They are tasked with demonstrating that they face a certifiable risk to their lives, though in most of their home countries there are few tangible ways to document their plight. Asylum seekers are thus saddled with a confounding burden of proof in an entirely unfamiliar legal system.

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CreditMaddie McGarvey for The New York Times

Our detention and deportation system is further obscured by a Kafkaesque, multi-agency bureaucracy that must be navigated in a language foreign to most of those ensnared in it. Even along the border with Mexico, prison guards and judges often do not speak or understand Spanish, distancing them even further from the population over whom they wield staggering control. This, in turn, exacerbates the vulnerability of detainees and their families, who are commonly preyed upon by lawyers, bail bondsmen and a microeconomy of individuals offering dubious document preparation, translation support and myriad other “services.”

In Arizona, the immigration judges who decide cases inside detention facilities are often notorious for their hard-line approach. For instance, from 2013 to 2018, one southern Arizona judge, John W. Davis, denied 96.9 percent of his cases, granting only nine asylum claims out of the 291 that came before him (the nationwide denial rate during this same period was dramatically lower, at 57.6 percent). In one two-year stretch, Judge Davis ordered the deportation of every single asylum seeker who entered his courtroom.

Despite all the odds stacked against her, Ysabel was granted asylum by a federal immigration judge in February, winning her case even without a lawyer. When I visited her a few days after the decision, she was visibly changed, carrying herself with a lightness I have rarely seen inside the walls of the detention center. After half a year suffering the oppression of uncertainty, a path had finally been laid out before her. Any day now, she told me, she would be released, the exit door into America finally opened.

Days and weeks passed, however, and still the door remained inexplicably shut. Week after week, I arrived at the detention center expecting Ysabel’s name to have disappeared from our list, only to find her sitting again in the visitation room among the other women seeking refuge — mothers, grandmothers, sisters, daughters. Each time we spoke, her freedom seemed to be slipping further away. The government had asked that her release be delayed while officials prepared an appeal. The deadline to file came and went without Ysabel receiving any updates regarding her case. Finally, she heard that the government had indeed filed its appeal, but she was given no follow-up court date — the one piece of information that allows detained asylum seekers to build a potential timeline for their near future, the single point around which some glimmer of hope might coalesce.

RELATED

Opinion | Francisco Cantú

Cages Are Cruel. The Desert Is, Too.

June 30, 2018

Ysabel’s case, I later determined after an hour of being referred from one phone line to another, had been transferred to the Board of Immigration Appeals — America’s highest administrative body for interpreting and applying immigration law. When I finally got ahold of someone from the office to inquire whether a court date had been set for Ysabel’s case, I was told that there was none. Instead of holding hearings, the court decides most cases behind closed doors, usually based solely on “paper review.” When I asked if the office could estimate how long it might take for a decision to be reached, I was told bluntly “there’s no timeline for the board.”

The power the government wields over Ysabel’s fate is difficult to fully grasp. The purgatory she and other asylum seekers are made to endure often lasts for months or even years. All across the country, migrants like her are being shut off from public view in hundreds of facilities that are largely unaccountable to the outside world. Few other countries are engaged in imprisoning noncriminals at such a scale: According to the Geneva-based Global Detention Project, the American immigration detention system is the largest in the world, and one of the few that locks up migrants in criminal-style prisons.

An internal report conducted by U.S. Immigration and Customs Enforcement (ICE) in 2009 plainly states that the agency’s detention model “relies primarily on correctional incarceration standards designed for pretrial felons,” standards that, ICE admits, “impose more restrictions and carry more costs than are necessary.” But these costs represent immense profits for the private detention industry: In fiscal year 2016, roughly two-thirds of all detained migrants (more than 260,000 people) were held in for-profit facilities, generating more than $4 billion in revenue.

Prolonged detention magnifies the most dehumanizing elements of the migrant experience — the commodification of bodies that occurs as migrants are trafficked, the dangers they endure along our militarized border and the criminalization thrust upon them from the moment they cross it. All of that is concentrated within the walls of the detention center. The women I meet feel this keenly. “I hope I can soon leave these four walls,” they tell me, because within them, “it’s like we are animals.”

The acute power of this dehumanization is also meant to serve as a tool of deterrence. Deterrence, after all, has become the underlying philosophy of border enforcement — the ever-growing danger and expense of crossing our Southwestern deserts, the horrifying prospect of parents being separated from their children, the destabilizing uncertainty of being imprisoned with no end in sight. All of it is meant to discourage, dissuade and ultimately break the spirit of the would-be migrant.

One of the women I visit regularly, a 57-year-old grandmother from Guatemala, recently admitted to me that she was considering dropping her asylum claim in order to be deported as soon as possible. The power she felt crushing her after more than half a year of detention was becoming even more unendurable than the overwhelming fear that led her to flee her home in the first place. “No puedo aguantar mas,” she told me — “I can’t take it any longer.”

This, I wanted to tell her, was the system working as it was designed. Instead, I told her not to lose faith, not to give up, wondering all the while if the refuge she sought here might be withheld from her forever.

Francisco Cantu is a former Border Patrol Agent and the author of “The Line Becomes a River: Dispatches From the Border.”

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.

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Beneath all of the Trump Administration’s diversionary tactics and overt White Nationalist racism is an even more disturbing truth: our country is systematically denying due process, fundamental fairness, and humane treatment to those who, unlike Trump and his scofflaws, are actually following our laws and deserve a “fair shot” at receiving life-saving protection.

Folks like Yasabel pose no “threat” to the United States other than the color of their skin. But, Trump, Stephen Miller, Bill Barr, and the rest of the Trump sycophants, their supporters, and their GOP enablers, pose an existential threat to our continued existence as a nation.

Outrageously, the U.S. Immigration Courts, supposedly a courageous bastion of protection for the legal and constitutional rights of asylum applicants and others against Government overreach, have become “weaponized” under Barr and Sessions. Now, they function as tools of repression, not justice.

Nobody, and I mean nobody, in the United States will escape the eventual consequences of the systemic abuses of our legal system and human dignity being carried out under our noses by the Trump Administration through the seriously corrupted Immigration “Court” System.

Yes, 1939 can happen in America, and it’s coming closer all the time! Trump’s disgusting rhetoric is the same as fascists before him: hate, shame, blame, vilification and dehumanization of the innocent and most vulnerable.

Wake up, before it’s too late! Join the New Due Process Army and fight against this Administration’s vile White Nationalist Plan to destroy our country!

PWS

06-01-19

FOURTH CIRCUIT EXPOSES EOIR’S CONTINUING BIAS AGAINST REFUGEES FROM THE NORTHERN TRIANGLE — “Here, as in [two other published cases], the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.” – Orellana v. Barr — Yet 4th Cir.’s “Permissive Approach” To Malfeasance At The BIA Helps Enable This Very Misconduct To Continue! — When Will Worthy, Yet Vulnerable Asylum Applicants Finally Get Justice From Our Courts?

ORELLANA-4TH-DV181513.P

Orellana v. Barr, 4th Cir., 04-23-19, published

PANEL: MOTZ, KING, and WYNN, Circuit Judges

OPINION BY: JUDGE MOTZ

KEY QUOTE:

In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.

Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.

First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,

3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.

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Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.

The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”

Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).

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The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.

Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.

First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.

Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11

cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.

Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.

Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from

12

dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4

We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.

We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.

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This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence. See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years. It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law. We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!

PWS

05-25-19

BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court

https://www.wnyc.org/story/presiding-under-pressure/

On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.

In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.

It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.

In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.

Here is what we learned.

Judges Who Worked for ICE or the Justice Department

Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.

(Jane Rosenberg for WNYC)

Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.

Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.

During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.

The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.

Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.

“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”

It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.

Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.

Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.

(Jane Rosenberg for WNYC)

Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.

He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”

According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.

Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.

In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.

Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.

Judges Who Used to Represent Immigrants

Judges Howard Hom, Maria Navarro and Charles Conroy.

(Jane Rosenberg for WNYC)

Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.

Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.

“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”

Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.

In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”

But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”

Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.

Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.

Judges With No Immigration Trial Experience

Judges Samuel Factor, Oshea Spencer and Brian Palmer.

(Jane Rosenberg for WNYC)

Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.

Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.

Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.

Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.

“On the Brink of Collapse?”

This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.

According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.

The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.

Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.

“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.

Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.

Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.

(Courtesy of National Association of Immigration Judges)

In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”

But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”

Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”

This month, the judges union and a coalition of former judges each wrote stern letters to the Justice Department for releasing “wildly inaccurate and misleading information” in a fact sheet it released to the media about the courts.

A New Path for Immigration Court

An empty judge’s chair in New York City’s immigration court.

(Jane Rosenberg for WNYC)

The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.

The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.

The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.

An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.

“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.

There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.

Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.

Varick Street has been in the news because of a lawsuit. Hearings there are held by video for detainees. Now, the trial attorneys at regular hearings appear by video. Immigration lawyers have complained about this process.

The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.

PWS

05-22-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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PWS

05-20-19

ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

https://www.npr.org/2019/05/19/724851293/how-trumps-new-immigration-plan-will-affect-backlog-of-pending-cases

Here’s the transcript:

LAW

How Trump’s New Immigration Plan Will Affect Backlog Of Pending Cases

5:40

DOWNLOAD

TRANSCRIPT

May 19, 20195:35 PM ET

Heard on All Things Considered

NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.

Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.

Mr. Chase, welcome. Thank you so much for joining us.

JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…

MARTIN: It does.

CHASE: It worked out.

MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?

CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.

So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.

MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?

CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.

MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?

CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.

MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?

CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.

And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.

MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?

CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.

MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.

Jeffrey Chase, thank you so much for talking to us.

CHASE: Thank you so much for having me on the show.

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

Go to the link for the full audio from NPR.

I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”

PWS

05-21-19

AS TRUMP’S POLICY OF “MALICIOUS INCOMPETENCE” CONTINUES TO UNRAVEL, UNHINGED PREZ CONSIDERS MASSIVE VIOLATIONS OF CONSTITUTION & HUMAN RIGHTS — “OPERATION WETBACK 2019” In The Offing?

https://www.washingtonpost.com/politics/white-house-leaves-open-possibility-of-invoking-insurrection-act-to-remove-migrants/2019/05/17/6b49c2c4-7892-11e9-bd25-c989555e7766_story.html

John Wagner reports for the Washington Post:

A White House spokesman left often the possibility Friday that President Trump would invoke an arcane law that would allow him to deploy the military to remove illegal immigrants, as Trump warned migrants on Twitter that they could be leaving the country soon.

Asked during a television appearance whether Trump is considering using the Insurrection Act, spokesman Hogan Gidley said the president is “going to do everything within his authority to protect the American people” and has “lots of tools at his disposal.”

“We haven’t used them all, and we’re looking at ways to protect the American people,” Gidley said during an appearance on Fox News’s “Fox & Friends.”

His interview took place amid a series of tweets from Trump, including some that suggested new actions to crack down on illegal immigration.

[Trump’s plan to overhaul legal immigration draws cool reception]

“All people that are illegally coming into the United States now will be removed from our Country at a later date as we build up our removal forces and as the laws are changed,” Trump said in one tweet. “Please do not make yourselves too comfortable, you will be leaving soon!”

In another, Trump said “bad ‘hombres’” were being detained and would be “sent home.”

His tweets followed a Rose Garden speech on Thursday about a new immigration plan that opened him to criticism from conservatives for not pressing a harder line.

The new White House proposal seeks to prioritize the admission to the United States of high-skilled workers over those with family members who are U.S. citizens, but it does not change the net level of green cards allocated each year.

The proposal sidestepped some major components of the nation’s immigration system that can be far more complex and controversial to resolve, such as the fate of the estimated 11 million immigrants without legal status and visas for temporary, low-skilled workers — issues that have divided the Republican Party and pit the business community against labor unions.

In a sign of sensitivity to criticisms from immigration hard-liners, The Post reported Thursday that Trump’s advisers are looking at measures behind the scenes such as the Insurrection Act, an arcane law that allows the president to employ the military to combat lawlessness or rebellion, to remove illegal immigrants.

The idea of using the law was first reported by the Daily Caller, a conservative news outlet, after Trump finished his speech Thursday afternoon.

Such a plan would involve deployment of the National Guard and cooperation of governors who might not be inclined to go along with Trump’s order.

Seung Min Kim, Josh Dawsey and David Nakamura contributed to this report.

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

Sounds like the “brainchild” of Stephen Miller!

Nothing brings cowardly nativists to their knees more quickly than hordes of unarmed, desperate migrants seeking to exercise their legal and human rights! The Trump Administration might be “rattling the sword” with Iran, but truth is that they are scared of their own shadows. Race-baiting and threatening the weakest, most vulnerable, and defenseless among us are about the only things they know how to do.

PWS

05-17-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
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corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
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6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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*****************************************

Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

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

Jason is absolutely correct. Truth eventually will win out.

But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.

We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?

PWS

05-17-19

MULTIPLE ORGANIZATIONS “CALL BS” ON EOIR’S “LIE SHEET” — No Legitimate “Court” Would Make Such a Vicious, Unprovoked, Disingenuous Attack On Asylum Seekers & Their Hard-Working Representatives!

Here’s a compendium of some of the major articles ripping apart the “litany of lies and misrepresentations” created by EOIR, America’s most politically corrupt and ineptly run “court” system.

Thanks to the the National Association of Immigraton Judges (“NAIJ”) for assembling this and making it publicly available.

https://www.naij-usa.org/news/setting-the-record-straight

PWS

05-13-19

THESE ARE THE DECENT FOLKS THAT TRUMP & HIS WHITE NATIONALIST NATION WANT YOU TO FEAR — “I constantly lived in fear and all I could do was pray to God to keep my kids safe. I think that that photo of me and my kids being gassed helped people see that we are humans too and we deserve to be treated with basic dignity. All of us are the same in the eyes of God.”

https://apple.news/AnODNXB12S1u3477b18BmjQ

Gina Martinez reports for Time:

She Was Tear-Gassed at the Border. But for This Migrant Mother, the Hardest Part Is the Children She Left Behind

Gina Martinez

In November 2018, the image of Maria Lidia Meza Castro desperately holding on to her twin daughters at the U.S.-Mexico border as a tear gas canister unleashed smoke behind them sparked national anger.

“Honestly, in that moment, I just thought, ‘I’m going to die with my kids right here and now,’” Castro tells TIME.

Six months later, Castro is living in a three-bedroom house in the Washington, D.C. suburbs with the five children she brought with her on the 2,000-mile journey from Honduras. And as millions of Americans prepare to celebrate Mother’s Day on Sunday, she says she would do it all again. But, her thoughts are constantly on the four children she left behind.

“Trust me, in Honduras you really suffer. Thank God at the very least I’m not suffering, but my kids over there are, and that’s tough,” she says.

Castro says she left Honduras in October 2018 and reached Tijuana a month later. It was there that U.S. Customs and Border Protection officers fired tear gas canisters at migrants rushing toward the U.S. border. Following the incident, Castro spent weeks in Tijuana camps until she and a group of fellow migrants were escorted to the Otay Mesa port of entry with the assistance of the nonprofit group Families Belong Together and two Democratic members of Congress. They also helped her apply for asylum. After making it through the border, she and her children were detained for five days before being released to live in the Washington area, close to where Castro has family.

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Photographer Federica Valabrega first met Castro and the five children she brought with her last November in Mexicali, Mexico, as they were making their way to Tijuana, days before the photograph of her being tear-gassed made headlines.

Valabrega lost contact with Castro after she entered the U.S. When she finally tracked her down, Valabrega spent three weeks with the Castro family, living with them and documenting their daily lives as they adjust to the United States.

“Ultimately, I felt compelled to follow up with Maria because I wanted to know how she was doing and because her determination to do anything in her power to raise her children in a better place as a single mother inspired me,” Valabrega says.

Castro and five of her kids share their new home with a fellow Honduran migrant mother and her two children. For now, the future is uncertain –– Castro’s attorney says there is a huge backlog and no set court date, leaving Castro and her children in limbo.

She is forced to wear an ankle bracelet, which some asylum seekers are issued to ensure they do not flee before their court date, and is not legally allowed to work. She spends her days tending to the children she was able to bring and worrying about the ones back in Honduras.

Castro crossed the border with her 4-year-old son James, 5-year-old twin girls Cheyli and Sayra, 13-year-old daughter Jeimy and 15-year-old son Victor. But she longs to be reunited with her 20-year-old son, Jayro, who was already in the U.S. but was deported in early February; her 18-year-old twins boys, Fernando and Yoni; and her 16-year-old son Jesus, who is paraplegic and cannot walk or travel. She fears they will fall prey to the violence she fought so hard to escape.

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“It’s hard because things are looking so bad in Honduras,” she says. “Over there they are killing people, they’re forcing young men to sell drugs and commit other crimes. My son feels terrible because he’s so far from me but also because I’m not able to help him financially because I still haven’t been able to get a job.”

Castro’s inability to have a job forces her to rely on a local church for food and other essentials while she awaits a court date that is likely still months away.

“I wish I could work. I want to fight for them and support them financially, but it’s not possible yet,” she says.

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Now, as Castro and her youngest children settle into life in the United States, she says her focus is solely on obtaining asylum so she can begin working and providing for all nine of her kids.

“I’m just happy for the opportunity to be here. Now that I’m here, I at least have some hope to give my kids a good life,” she says. “I like it here because there is not as much danger; here you can be in peace. It’s just so different from life in Honduras, where you can’t even be outside after a certain time without putting your life in danger.”

She says her children are getting more accustomed to life in the Washington suburbs with each passing day. They are beginning to learn English and enjoy playing in the park.

As Castro looks back on the difficult journey from Honduras, she says she would do it all over again if it meant ending up where she is now.

“It was very much worth the suffering we had to go through to end up here,” she says. “I constantly lived in fear and all I could do was pray to God to keep my kids safe. I think that that photo of me and my kids being gassed helped people see that we are humans too and we deserve to be treated with basic dignity. All of us are the same in the eyes of God.”

She adds: “My message to mothers everywhere, especially moms who are going through what I am, is just that God gave us a chance to change our lives and with patience and hope we can fight for our families and give them a better life.”

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Go to the complete article from Time at the link for some great photography from Federica Valabrega.

Whether or not Maria Lidia Meza Castro and her family qualify to stay in the U.S., they and others like them deserve to be treated humanely, respectfully, and to have their claims fully and fairly considered. That’s not happening now, particularly at EOIR which has intentionally tried to skew the law against applicants from Central America and fails over and over to either apply the asylum law correctly or to correctly and honestly assess the conditions in the Northern Triangle. Not to mention that EOIR management has turned the Immigration Courts into an intentionally hostile environment for the mostly pro bono attorneys trying to help asylum applicants. And, Trump would like to truncate the process even further. Totally disgraceful!

Even if Castro doesn’t ultimately qualify for relief under the immigration laws, she and her family would be in danger in Honduras and could make contributions to the United States. Therefore, a smart, humane, and brave country would carefully consider granting broader protections than asylum law might allow. Instead, the Trump Administration tries to contort and limit what should be generous, life-saving relief available under our asylum laws.

PWS

05-12-19

TRUMP & HIS ENABLERS CLAIM THAT IT’S SAFE TO RETURN GUATEMALANS — THEY LIE! — The Facts “On The Ground” Tell A Far Different Story: “No wall will stop the flow of migrants. No raging about rapists or threats to separate families will stop it. No racism against brown people or fear of demographic change in 21st-century America will stop it. A broken American immigration system certainly won’t stop it. Not as long as Central Americans are desperate.”

https://www.nytimes.com/2019/05/10/opinion/border-immigration-crisis-guatemala.html

Roger Cohen writes in the NY Times:

VADO, N.M. — Rigoberto Pablo ran out of hope. There was no work, no decent schooling for his children. Nothing in the dried-out streams, wilting coffee plants and wafting sewage of his village in the western highlands of Guatemala gave him reason to think his family’s suffering would end. So late last year, he crossed the nearby Mexican border, U.S.A.-bound.

Three months later, in February, I met him in this small New Mexico town, a timid man with a gentle smile. Pablo, age 37, is in American limbo, like hundreds of thousands of migrants. Seated on a sofa in the home of his hosts, he reached down, turned up the hem of his pants and revealed the electronic ankle monitor that Immigration and Customs Enforcement affixed when it released him. A green light confirmed he was being tracked. “If I take it off,” he said, “they’ll come after me.”

His 14-year-old son, Alex, who crossed the border with his father on Nov. 14 and is now in seventh grade at a nearby school, gazed at the device. His dad, he said, is “not a rapist or murderer. He wants to work and I want to study.”

If only it were that simple. Rigoberto and Alex Pablo are part of a vast influx. Already, the 460,294 migrants apprehended at the southern border this year outnumber those for all of 2018. Since October, 1 percent of Guatemala’s total population — more than 160,000 people — have crossed. Many are children. Almost a year after President Trump ended his cruel “zero tolerance” policy that ripped kids from their parents, children, most from Central America, are still pouring in — some 40,000 in April alone, almost 9,000 of them unaccompanied by a parent. Last month Juan de León Gutiérrez, 16 years old, became the third Guatemalan child to die in federal custody in five months. The others were 7 and 8.

Image

Immigration and Customs Enforcement fitted Pablo with an ankle bracelet when it released him.CreditTamir Kalifa for The New York Times

Image

Mr. Pablo and his son Alex crossed into the United States from Guatemala together last year.CreditTamir Kalifa for The New York Times

This situation is unconscionable. Americans of all political stripes should be able to agree on that. The United States has to reconcile being a nation of immigrants and a nation of laws.

Yet our immigration policy is mired in shameful congressional paralysis, with the great diversion of Trump’s sea-to-shining-sea wall serving only to fire up his base and fan political differences. His policy zigzags, and his revolving-door appointments and his threats (including the construction of a “contingency” detention center for migrants at Guantánamo Bay, Cuba) do nothing to address the root of the immigration crisis: the implosion of Central America.

“This crisis is about children, their safety and the future of our region,” said Kevin McAleenan, the acting secretary of homeland security, this month. Nothing he or Mark Morgan, Trump’s nominee to head ICE, does will work until the collapse of the region is addressed.

Guatemala is led by a former TV star (sound familiar?) named Jimmy Morales, who ran in 2015 on a slogan of “Neither corrupt nor a thief.” That is now a joke. He has tried to expel the International Commission Against Impunity in Guatemala, a United Nations-backed group. He wants to grant amnesty to the perpetrators of the 1980s genocide that killed hundreds of thousands of Guatemalans, most of them indigenous people like the Pablo family. Meanwhile the state is failing to provide its people with basic food, health care, education and protection from narco-violence.

Trump says he wants to punish Guatemala and its neighbors for not doing enough to stop the migrants. “No money goes there anymore,” he said. But he has winked at Morales’s corruption, emboldening him to trash the rule of law that is Guatemalans’ only defense. State Department officers seethe at America’s abandonment of its values, but political appointees overrule them. Morales keeps Trump happy in various ways. Guatemala moved its embassy in Israel to Jerusalem immediately after the United States did.

Image

A sign calling President Jimmy Morales a “national shame” at a rally in January in Guatemala City.CreditMoises Castillo/Associated Press

No wonder people like Pablo are fleeing. He is planning to petition for asylum, though gaining it will prove difficult; poverty alone isn’t a justification. Nonetheless, the backlog in immigration court means he’ll probably be able to remain for two to three years before his case is heard. In the meantime, he can’t legally work. He’s living with Aurelio and Maria Aranda, a family he met through the El Paso-based Border Network for Human Rights. His son is learning English, at least. Migrants bring children because it improves their chances of getting in, but also out of a fervid desire to give them a future.

Pablo told me about the hunger and fear on the weeklong road to the border. Meager rice and beans offered once a day. Being herded this way and that by coyotes — the smugglers he’d paid $5,000 in borrowed money. Running under a full moon, climbing eight-foot wire fences, passing babies beneath them and children over them, surrendering in the dawn to the United States Border Patrol.

He has no idea what will happen now. “My wife and three other children are back in the village,” Pablo told me. “I miss them. My youngest son was sick. I could not afford the medicine.”

The candor of his gaze was almost unbearable. I decided I had to go to his village of Aldea Las Guacemayas to see for myself what had propelled him northward.

It takes over nine hours to drive the roughly 220 miles from Guatemala City northwest to Pablo’s home. Volcanic mountains soar, dense with vegetation, browned from lack of rain. Neglect is everywhere: Subsiding hillside terraces are barren of cultivation, half-finished houses point rebar at the sky, unkempt shrines commemorate lives tipped over a precipice. Straight-backed indigenous women in bright fabric bestride this wounded landscape.

Guatemala is a beautiful, traumatized country, marked by centuries of white Criollo racism toward the Mayans and other indigenous people. During the early 1980s, military-backed death squads rampaged through entire communities, justifying a scorched-earth policy on the spurious principle that “indigenous villages were the rivers in which the leftist guerrillas swam,” as Edgar Gutiérrez, a former foreign minister, put it to me. Leftist Sandinistas had triumphed in Nicaragua. The United States, determined to prevent this from happening in Guatemala, supported the paramilitary marauders.

Some 200,000 people were killed, including 40,000 who disappeared. This was the Guatemalan genocide, an indelible wound. President Morales has encouraged the slogan “There was no genocide” — a tip of the hat to the military who support him. That Trump has embraced this government, given the past American military support that President Bill Clinton acknowledged as a “mistake,” underscores this administration’s contempt for human rights.

Image

Candelaria Sales Garcia, Pablo’s wife, in the courtyard of their home.CreditDaniele Volpe for The New York Times

Pablo’s wife, Candelaria Sales Garcia, greeted me outside the family’s hillside shack, where a duck pecked at a watermelon rind and a little dog called Dollar slept in the shade. In the kitchen, a wood fire heated beans in blackened pots.

Sales is a woman with a broad smile that can’t quite mask her obvious pain. Her husband and one son are gone to North America. Another son, 19-year-old Valdomero, struggles to find work. Her daughter, Gabriela, 12, sits idle because her schoolteachers are no-shows. Her youngest, an 8-year-old named Leo, has a cheek swollen from an intractable infection.

“I said nothing to my husband although he was leaving me behind here,” she told me. “Because I knew that there is nothing here.”

Nothing. I kept hearing the word. Nothing from the government, nothing to do — no water, no education, no health care, no jobs — “here there is nothing, nothing,” Valdomero declared, sweeping a hand across the sunbaked landscape. The state hardly bothers to collect taxes — they represent a smaller percentage of gross national product than remittances — and does little with them.

Listening to this bright, bilingual young man (he and his family speak the Mam dialect and Spanish), knowing that their brown skins make them invisible to their government, I was reminded of my South African father’s summation of why he could not stand apartheid and left: “The waste.”

Image

Candelaria Sales Garcia with two of her children, Gabriela and Leo Pablo.CreditDaniele Volpe for The New York Times

Image

A photo of Alex Pablo on his mother’s phoneCreditDaniele Volpe for The New York Times

Valdomero does the work his father used to do. He unloads concrete building blocks from trucks. He stacks them. For a day of this, he says, he is paid about $8: Hardly enough to keep the family in tortillas. You do this and do this and do this — and then one day, you have to get out.

As dusk fell, the young man suggested we take a walk up the mountain. It has changed since he was a child. The streams where he played and drank are gone. The birds are gone. So are the coffee trees. The mountainous amphitheater, visible from a ridge, is no longer verdant. For three or four years now, it has been dry and hot.

Image

Valdomero Pablo, right, on the mountains near his village.CreditDaniele Volpe for The New York Times

I have never been anywhere that conveyed such a palpable sense of the earth dying. President Trump thinks climate change is a joke. He should come here. He would understand another big migration driver.

The only sign of development is a couple of spindly red-and-white telecommunication towers on the ridges. A basic phone is cheap, and Guatemalans pay as they go: the 21st century’s bread and circuses for the masses.

The next morning, I drove into Mexico with Valdomero. White posts with an official stamp mark the frontier, but there is no control of any kind: no police, no customs or border agents, no barrier, nothing.

A Toyota Hilux roared up from the Mexican side but its driver, seeing a gringo, spun around. “Narcos,” Valdomero said. We continued some 15 miles into Mexico without being asked for a passport or papers.

Coffee, gasoline, corn, chickens and coffee are openly smuggled back and forth on that road. So are people and drugs, mainly cocaine. Only a tiny fraction of the estimated 1,400 tons of cocaine transiting the country annually is interdicted. Congressmen, mayors and police officers have been paid off by the cartels. Morales will soon be term-limited out; for the presidential election next month, his party has put forward a new candidate, Estuardo Galdámez, who recently posed for a photograph with a convicted drug trafficker.

Image

The border between Guatemala and Mexico, near Pablo’s home.CreditDaniele Volpe for The New York Times

Guatemala is sliding backward at an alarming rate. The passage from national trauma toward democratic decency is never easy. Here it began with the peace accords of 1996. For a dozen years now, democracy has been buttressed by the efforts of the International Commission Against Impunity in Guatemala, or Cicig, established through a treaty between the United Nations and Guatemala.

Cicig is central to Guatemala’s efforts to establish an independent justice system. Morales’s two predecessors were jailed on charges of corruption. The United States last month arrested and charged Mario Estrada, a presidential candidate close to Morales, with conspiracy to import cocaine. Morales himself is being investigated in Guatemala for campaign finance irregularities, and his brother and son face fraud charges. Some of the country’s richest families are being investigated for the illegal financing of Morales’s political party.

Now President Morales has turned on Cicig, ordering its expulsion and unilaterally terminating its mission. He has banned Iván Velásquez, its head and a former Colombian prosecutor, from re-entering the country — all to scarcely a whimper from a Trump administration notoriously hostile to the United Nations and multilateralism.

Guatemala’s Constitutional Court has ruled Morales’s measures illegal. The president has said its judgment means nothing: So much for the rule of law. Cicig continues its work, with Velásquez leading it from abroad, but stripped of any police protection for its personnel, the organization is “in intensive care,” as one American official put it to me. When I visited its headquarters in Guatemala City, a ghostly air prevailed.

American support for Cicig had been critical. In 2013, Stephen Rapp, the State Department’s ambassador at large for war crimes, visited the courtroom where Efraín Ríos Montt, the former dictator, was tried. Montt was convicted through the bravery of survivors and Cicig-backed prosecutors, though the verdict was later vacated on a technicality. The message could not have been clearer: The United States is resolute in its support of an independent judicial process and Guatemala’s nascent rule of law.

No longer. Trump’s America has gone AWOL.

“Cicig has mounted a system of terror where it persecutes those who think differently,” Morales declared grotesquely to the United Nations General Assembly last September. Earlier that month, Secretary of State Mike Pompeo had tweeted, “We greatly appreciate Guatemala’s efforts in counternarcotics and security.” That was it.

The State Department, through its deputy spokesman but not Pompeo himself, has declared that the United States is “deeply concerned” by Morales’s recent efforts to pass a bill that would grant amnesty to, and free, those convicted of gross human rights violations during Guatemala’s 36-year civil war. But this mild protest was dismissed in Guatemala City as the murmurings of a third-tier bureaucrat — in effect, tacit authorization. The government operates on the basis that it has a green light from the White House.

Many in the State Department are troubled. One officer told me: “It’s a strange and disturbing thing. The arguments we make to political appointees are not heard. We have a State Department that basically stood by while Jimmy Morales dismantled the mechanisms put in place to confront impunity.”

Luis Arreaga, the United States ambassador in Guatemala, is a career diplomat who has tried to stand up for American principles. For this he has been dismissed in local media as an Obama holdover, called the “worst ambassador in the world” and accused of being both on George Soros’s payroll (of course) and an agent of Cuba or Venezuela.

All this is consistent with an elaborate Guatemalan lobbying operation in Washington that has sought to portray Cicig as a bunch of Soros-backed liberal lefties. Several Republicans, including Representative Rick Crawford of Arkansas and Senator Mike Lee of Utah, have proved receptive.

In January, Crawford tweeted in support of the expulsion of Cicig, saying Guatemalans were “entitled to their own sovereignty.” In March, Lee tweeted: “Free and fair elections of a nation’s representatives, chosen by and for the people, is the foundation of republican government. Our friends in Guatemala should be able to exercise this right, free from foreign influence by the U.S. State Department.”

This amounted to a thinly veiled attack on Arreaga, whom Guatemalan media have attempted to portray as backing the presidential candidacy of Thelma Aldana, a tough former attorney general behind several anti-corruption cases. She now faces an arrest warrant for alleged embezzlement as Morales maneuvers desperately to block her candidacy. She has taken refuge in El Salvador.

In line with the nationalist playbook at work in Hungary and Poland, Morales has also gone after the independent judiciary relentlessly. Judges are regularly branded as “terrorists.”

I went to see Gloria Porras, one of the five justices on the Constitutional Court, Guatemala’s last bastion of the rule of law. She is a woman of great poise and dignity, under constant attack.

“Every time we uphold a case of corruption,” she told me, we make it possible for “public money to be spent on the basic problems we have.” The government says that public money is not sufficient for medicine, education and roads. “I believe it is sufficient but not used in the right way,” she said.

Porras and other colleagues have been threatened with removal from the court. This month there was a bomb threat that forced the court’s evacuation. She looked at me with defiant pride.

“They assault my dignity,” she said, “because I have zero tolerance for narcotics trafficking and I am independent in my positions. The traffic of drugs to the United States is, as musicians say, in crescendo. The traffic is tied to corruption. Whatever the risks, whatever the attacks, I will do my work. It is a question of legality. It is also a question of honor.”

“Every time I make the right decision,” she continued, “I contribute to the creation of hope that my country can change.”

Every anti-corruption decision by an independent justice, in other words, fosters a Guatemala where Pablo and his family do not have to leave in desperation, because they might just have a future.

Before I left Rigoberto Pablo’s village, I spoke to his daughter, Gabriela. School had been canceled. She was bored and frustrated. “I want to go to America, I want to study there with my brother,” she said. “And I want to see Papa.”

Image

Gabriela Pablo doing homework in the courtyard of her family’s home. CreditDaniele Volpe for The New York Times

No wall will stop the flow of migrants. No raging about rapists or threats to separate families will stop it. No racism against brown people or fear of demographic change in 21st-century America will stop it. A broken American immigration system certainly won’t stop it. Not as long as Central Americans are desperate.

Trump doesn’t believe in multilateral diplomacy. If he were serious, he would involve Guatemala, El Salvador, Honduras and Mexico in diplomacy on practical steps. He would explore fair and efficient in-country asylum processing. He would stop talking about a wall and slashing foreign aid and start talking about Central American development, a possible Marshall Plan for the region. Mexican migration has declined as Mexican standards of living have risen. There’s a lesson there, if Trump were interested.

He would pursue ways to make the Guatemalan-Mexican border something more than a joke, to combat corruption and narcotics trafficking, to fight impunity and establish the rule of law in Central America, to give Guatemalans some belief in their government, to empower the likes of Gloria Porras, to restore American values, to protect human rights and to match migrants with jobs. And he would declare, “We cannot tolerate the death on our watch of ONE MORE child!”

The unique energy of America’s churn is indivisible from the renewal new immigrants bring.

Image

Pablo in New Mexico.CreditTamir Kalifa for The New York Times

At the same time, if generosity breeds lawlessness, it defeats itself. Somewhere between those truths lie possible compromises on immigration that Republicans and Democrats could agree on — if Trump had not reduced politics to partisan war.

My journey to the border and on to Guatemala left me with a familiar feeling: Trump’s America is betraying itself. What brought Rigoberto Pablo and his child here is an old and honorable idea of the United States: “I came to this country to make money and to improve my life,” he told me when we spoke this month. His ankle bracelet had been removed a few weeks before, and in August he will appear in court to apply for asylum. He is a decent, honest man with a decent, honest family. He deserves better than Jimmy Morales’s lawlessness and Donald Trump’s posturing.

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

Desperate people do desperate things! Duh! That’s what one of my colleagues told me my first week on the bench in Arlington. Too bad that Trump and the incompetents who work for him don’t take the time to understand the basics of human migration and conduct themselves lives like human beings and responsible public officials.

America deserves someone better than Donald Trump and his cowardly sycophantic GOP. Both Guatemala and the U.S appear to be “governed” by kakistocracies!

We diminish ourselves as a nation with each day that Trump is in office. But, that won’t stop human migration. It’s going top take folks much smarter, more humane, and more competent that Trump and his toadies to successfully address today’s immigraton issues.

PWS

05-11-19

POLITICO: Are Trump’s Immigration Policies Causing More Migrants To “Voluntarily Depart?”

https://apple.news/ANCLqhkMJT5OlWhn2TePBdg

Christie Thompson and Andrew R. Calderon of The Marshall Project report in Politico:

Christie Thompson is a staff writer and Andrew R. Calderon is a data reporter for The Marshall Project, a nonprofit news organization that focuses on the U.S. criminal justice system.

Alejandra Garcia Zamarrón, a mother of three American citizens, had lived in the United States for nearly 20 years when a police officer pulled over the unregistered vehicle she was riding in.

Georgia was her home, the place where she’d lived for years and raised her family. But when she found herself locked in the Irwin County Detention Center, she had few options to stay. She’d been brought to the U.S. as a child, but her protected status as a childhood arrival had expired. And she had given a fake name and date of birth to the police officer who stopped her, a misdemeanor that put her at greater risk of deportation.

Zamarrón, 32, initially vowed to fight her removal from the U.S. as long as she could. But as the months in detention dragged on, she changed her mind and asked for “voluntary departure,” which would allow her to leave the U.S. without a deportation on her record. “My family decided the best bet was for me to leave and fight from the outside,” Zamarrón said in a phone call from the detention center, before she returned to Mexico in November.

The number of immigrants who have applied for voluntary departure has soared since the election of Donald Trump, according to new Justice Department data obtained by The Marshall Project. In fiscal year 2018, the number of applications doubled from the previous fiscal year—rising much faster than the 17 percent increase in overall immigration cases, according to data from the Transactional Records Access Clearinghouse at Syracuse University. The numbers show yet another way the Trump administration’s crackdown on immigration is having an effect: More people are considering leaving the U.S., rather than being stuck in detention or taking on a lengthy legal battle with little hope of success.

Last year, voluntary departure applications reached a seven-year high of 29,818. In the Atlanta court, which hears cases of Irwin detainees like Zamarrón, the applications multiplied nearly seven times from 2016 to 2018.

The increase in applications for voluntary departure could be seen as a win for the Trump administration, which has made it a goal to get undocumented immigrants out of the country and reduce the backlog of immigration cases. Indeed, the Justice Department has published the growing number of voluntary departures alongside deportations as a sign of a “return to the rule of law” and that Trump’s approach is working. It’s also a sign of how broad immigration enforcement has become, sweeping up the criminals Trump talks about alongside parents like Zamarrón who have little to no criminal history—voluntary departure is only open to immigrants without a serious record. When Mitt Romney once shared his plan to have people “self-deport,” he meant it as an alternative to ramping up Immigration and Customs Enforcement’s power. But the recent spike in voluntary departure has come with an increase in both arrests and detention.

An application for voluntary departure has to be approved by an immigration judge. The number of requests granted increased 50 percent in fiscal year 2017, according to data from the Justice Department. Because not every case is resolved during the year it is filed, and judges can grant voluntary departure without a formal application, the annual total of voluntary departures has exceeded the number of applications.

Under immigration law, voluntary departure is considered a kind of privilege. If you are deported, you have to wait years to apply for a visa to reenter the United States, but those who leave voluntarily don’t have the same wait. And you don’t face serious prison time if you are caught without legal status in the U.S.

But voluntary departure is a last resort for many undocumented immigrants because it means leaving their longtime homes and, often, their families without any clear prospect for returning. And those who take the option usually have to pay their own way home. Those flights can cost thousands of dollars because immigration officials require a special kind of ticket that can be changed at any time.

Several factors are probably responsible for the surge in the number of applications for voluntary departure, experts say. ICE has increasingly gone after immigrants who have no criminal backgrounds—those who are more likely to qualify for voluntary departure. Because of the growing backlog of immigration cases, judges and Department of Homeland Security attorneys may feel pressured to resolve cases quickly and offer voluntary departure instead of dragging out multiple appeals.

“I would definitely think that some of it might be related to judges trying to keep up with their production quotas,” said former immigration Judge Paul Wickham Schmidt.

The Executive Office for Immigration Review—the Justice Department office in charge of immigration courts—declined to comment on the increase in applications. “Using metrics to evaluate performance is neither novel nor unique to EOIR,” spokeswoman Kathryn Mattingly wrote in an email. “The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process.”

ICE spokesman Brendan Raedy wrote in an email many apply for voluntary departure so they don’t have to wait to apply to reenter the country. “In addition, voluntary departure generally provides far more time to make necessary arrangements than for those who are ordered removed,” he wrote.

Attorney Marty Rosenbluth, who represents clients in the immigration court at the Stewart Detention Center in Georgia, said more of his clients from Mexico are considering voluntary departure because of the danger involved in deportation. At Stewart, one of the country’s most remote detention centers, the number of applications last year was 19 times what it had been in 2016.

“It’s largely a safety thing,” Rosenbluth said. In deportations, “ICE just dumps you at the border, and you’re on your own.”

If they’re granted voluntary departure, people are able to fly into Mexico City or closer to home.

Immigrants may also be increasingly aware of voluntary departure as an option and of the slim chances of winning a case from detention. “Detainees talk to each other,” said Trina Realmuto, a directing attorney for the American Immigration Council, a pro-immigration nonprofit. “The one guy fighting his case is going to say, ‘I’ve been here a year and nobody wins.’ There are legal factors, and there’s human factors.”

Zamarrón’s request for voluntary departure came as a surprise to her legal team. “She had been saying for months and months, ‘I’m going to fight this,’” said attorney Laura Rivera of the Southern Poverty Law Center, who worked on Zamarrón’s case. “It speaks to the desperation of people in detention that they’d be trying to sign up in droves for this thing that actually causes them to be removed. They’ve got to be thinking that there’s no way out.”

Before she returned to Mexico, Zamarrón said she was driven by the need to have more contact with her family than she was able to have in detention.

“When I come out, I’ll be able to have more communication with them, FaceTime with them,” she said. “I didn’t want to wait. I’m ready to see my baby’s face.”

From Mexico, she recently video-called into her 13-year-old daughter’s baptism. She hopes to apply for a U-Visa as a victim of domestic violence and sexual assault and, at the very least, have her 17-year old son petition to bring her to the United States after he turns 21.

Zamarrón said many of the women with whom she was detained were also considering voluntary departure.

“They’re tired of living in here, of dealing with ICE, dealing with guards, dealing with the injustice. … They give up. They’d rather be deported than fight for their case,” she said. “We’re not criminals. We just don’t have options.”

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

“Voluntary departure” (“VD”) is a mixed bag. It undoubtedly can be an effective way for Immigration Judges to manage crowded dockets by eliminating those cases that do not require “full merits” hearings. And, after Sessions got done stripping judges of their most effective docket management tools and reducing them to “enforcement clerks,” it’s one of the few such tools left to the beleaguered and diminished “judges.”

On the other hand, in conjunction with coercive detention and “production quotas,” there is a temptation for judges and DHS Counsel to use “VD” to duress migrants into abandoning plausible cases for asylum or other relief just to get out of what has intentionally become an oppressive and biased system.

Either way, it’s unlikely that the “VD rush” will be a major factor in reducing the ever-increasing backlog of Immigration Court cases. That would require a smarter due process oriented, more pragmatic approach than this Administration is capable of or willing to embrace.

PWS

05-10-19

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

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

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

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